24 How. Pr. 210 | N.Y. Sup. Ct. | 1862
This"suit was upon a promissory note ; the defence was infancy. The plaintiff proved the note, and rested ; and the defendant proved, by his own testimony and that of another witness, that he was an infant when the note was -made. Upon the cross-examination some facts came out tending to show that the defendant had been doing business for himself, and in certain particulars holding himself out, or allowing himself to be, considered of full age. This was all the evidence. When it closed, the defendant’s counsel did not ask me to direct a verdict, as he might have done, since there was really nothing in the case for a jury. In the absence of any such request from counsel, I unwisely allowed the case to go to the jury, giving them very careful instructions. The result showed that.I relied too much upon their intelligence or their firmness. They found a verdict for the plaintiff. If this verdict went upon the question of infancy, it was plainly contrary to the evidence ; and if it went upon any notion of an estoppel against the defence of infancy, it was as plainly contrary to law. Either way it must be set aside, and the only question is, how or when.
The present motion is made upon the minutes of the judge, under section 264 of the Code. The phraseology which has been used by the codifiers gives rise to the only question in this, as it does in so many other cases. Section 264 allows a motion for a new trial upon the minutes, “ upon exceptions, or for insufficient evidence, or for excessive damages.” Before the Code, we had new trials granted when verdicts were contrary to the evidence, and when they jvere contrary to law. These expressions were sufficiently plain in themselves, or if there was any obscurity
I shall therefore assume that a motion to set aside a verdict, and for a new trial, “ upon insufficient evidence,” means a motion for a new trial on the ground that the verdict is against the evidence. That I take to be the case. I am not required to assume that the jury found the fact of infancy in favor of the defendant, and then proceeded to a verdict against him upon some supposed legal ground of estoppel. There being no legal foundation or appearance of estoppel in the case, I shall not imagine any, but shall treat the verdict of the jury as given upon the question of infancy, and against the evidence on that issue.
It must therefore be set aside ; but as the verdict and this motion would have been prevented by a proper application at the trial, to direct a verdict, the defendant ought not, in any event, to recover the costs of the late trial or of the motion.
The verdict is set aside and a new trial ordered, but the costs of the trial and of this motion are allowed to the plaintiff, to be costs of the cause, and to be recovered by him if he shall finally succeed; or if he is ultimately defeated, to be set off against the defendant’s costs.