108 N.Y.S. 653 | N.Y. App. Term. | 1908
The action was brought to recover an alleged balance due upon certain merchandise, which plaintiffs claim they had sold to defendants. The answer was a general denial. Plaintiffs’ contention on the trial was that the goods were ordered by the defendants, and delivered at defendants’ request to another concern, who occupied a part of the loft occupied by defendants. The plaintiffs made out a prima facie case, and the granting of a motion to dismiss the complaint was not justified. The facts were sharply contested upon the trial, and reasonable men might differ as to the result that ought to have been reached by the jury. In such' a case the court ought not, in the exercise of its discretion, to set.aside the verdict reached as against the weight of evidence. We think that the discretion of the learned trial justice was improperly exercised, and that the order setting aside the verdict should be reversed.
Order and judgment reversed, with costs, and verdict reinstated.