Charles P. Daly, Chief Justice.
The appellant claims that under the amended Code (§ 999) the judge who tries the cause has no power to set aside a verdict as against the weight of evidence on a motion made upon his minutes ; that *501the provision that he may entertain such a motion when the verdict is “ contrary to the evidence ” does not mean where it is against the weight of evidence♦ There has long been a well-recognized distinction between verdicts which are simply against evidence and those which are against the weight of evidence. The first embraces cases in which there is no evidence to sustain the verdict, the other, cases where there is, but where the weight of the evidence is so overwhelming as to call upon the court, in the exercise of a sound discretion, to set aside the verdict,—a discretion exercised only in extreme cases, from the great regard which is due, under the constitution and laws, to the unanimous decision of a jury upon a question of fact. This distinction is not expressed in words in § 999, but the language u contrary to evidence ” is, in my opinion, broad enough to cover it; and I agree in the suggestion of the respondent that, in the passage “ contrary to evidence, or contrary to law,” the language “ contrary to evidence ” is used antithetically to the expression “ contrary to law,” and was meant to embrace any case in which a motion for a new trial can be made upon the evidence in the cause, as contradistinguished from errors of law. (See Cheney v. N. Y. C. & H. R. R. R. Co., 16 Hun, 415.)
The manifest object of this provision, introduced in the Code in 1851, was to relieve the party aggrieved from the trouble, delay and expense of making up a case, by allowing him during the term, whilst the facts were still fresh in the judge’s recollection, to move for a new trial on the judge’s minutes, upon any one of the grounds specified in that section ; and if the relief sought under it involved a review of the evidence, to give him all the advantage that he would have in reviewing the evidence upon a case. As the provision originally stood in 1851 the language was, “ or as being against evidence, or for insufficient evidence.” In 1852 it was changed to “ or for insufficient evidence,” which the last revisors (1877) changed to “ or contrary to the evidence.”
Judge Woodruff, in Alges v. Duncan (7 Transcp. App. 167), was of opinion that there was an inherent power in the judge at nisi prius to set aside a verdict if it was against *502law, or unwarranted by the evidence, or against his positive instructions, without the delay and expense of making up a case; but it was settled in Tinson v. Welsh (3 Robt. 392 ; affirmed 51 N.Y. 244" court="NY" date_filed="1872-09-05" href="https://app.midpage.ai/document/tinson-v--welch-3581752?utm_source=webapp" opinion_id="3581752">51 N. Y. 244) that a motion for a new trial on the judge’s minutes could only be made in the mode, and in the cases specified in the Code. That was a trial in which the evi-dence was conflicting, but in which, in the opinion of the general term of the court below, there was no such preponderance as would justify the court in setting aside the verdict as against the weight of evidence; but the order was reversed upon the ground that there was no authority under the Code or otherwise for a motion upon the judge’s minutes to set aside a verdict because it was against the instruction of the court. As the court below reviewed and passed upon the question of the weight of evidence, it is very evident that they considered that such a motion could be made under the section, and I am not aware that it has ever occurred to any one before the last amendment that this section was to be construed as allowing the motion to be made on the judge’s minutes for a new trial if the verdict was against evidence,' or for insufficient evidence, but if it was against the weight of evidence that the motion could be made only upon a case.
No such distinction was ever raised in this court, where many such motions have been made since 1851 under this provision upon the judge’s minutes, and I see nothing in the substitution in 1877 of the word “ contrary ” for the previous words “ against ” or “ insufficientthat makes any material difference in this respect.
Taking the whole of Judge Joseph F. Daly’s opinion together, I do not understand that he ordered a new trial solely upon the ground that the jury had made a mistake in allowing the plaintiff to recover for the two amounts embraced in the checks deposited by Demarest & Wygant in the North River Bank, and paid on the following day by the defendant’s bank through the clearing house; but that he referred to these two payments by the plaintiff as contradicting and impeaching his evidence so clearly, that a case resting solely on his testimony should not be sus*503tained, or, at least, as showing that a verdict by the jury for the whole amount was a mistake. But if he had, 1 do not concede that it was held in the cases on which the appellant relies (Morse v. Sherrill, 63 Barb. 21" court="N.Y. Sup. Ct." date_filed="1871-04-04" href="https://app.midpage.ai/document/morss-v-sherrill-5462489?utm_source=webapp" opinion_id="5462489">63 Barb. 21 ; Tinson v. Welsh, 51 N.Y. 244" court="NY" date_filed="1872-09-05" href="https://app.midpage.ai/document/tinson-v--welch-3581752?utm_source=webapp" opinion_id="3581752">51 N. Y. 244), that the revisory jurisdiction of the appellate tribunal is limited to a review only of the grounds upon which the court below ordered a new trial. In the first of these cases there is nothing in the remarks of the court referring to any such rule, and nothing in the decision from which such a rule is to be deduced ; and in the last case, the application for a new trial was moved for upon the judge’s minutes, upon the ground that the verdict was against the instruction of the judge, as appears by the recital in. the order granting the new trial, which order was re'versed for the reason that the Code (§ 264; amended, § 999) gave no authority in such a case to grant a new trial on the judge’s minutes, the decision being nothing more than that a new trial cannot be moved for upon the judge’s minutes, except in the cases specified in the Code, that is, upon exceptions, or because the damages are excessive or insufficient, or the verdict is contrary to the evidence or contrary to law. In the present case, the motion for a new trial, as appears by the notice of motion, was for excessive damages, and because the verdict was “ contrary to and against the weight of evidence, and otherwise contrary to the evidence and the law,” and the order is simply that “ the said motion be, and the same hereby is, granted,” so that the order must be affirmed if any one of the grounds specified in the notice was good.
In my opinion, this was one of those extreme cases in which the discretion of the court to order a new trial, where there has been conflicting testimony, was properly exercised. I feel as fully as the counsel for the appellant has expressed it, that this is a power to be discreetly exercised, in view of the weight that is to be attached to the verdict of a jury upon a fair trial. I have frequently, in opinions hereto delivered, expressed, as the result of a long experience, my high estimate of the verdicts of juries in general; of the great value I attach to that mode of determining questions of fact, *504and that the conclusion of twelve disinterested men, upon what is merely a question of fact is entitled to so much weight that it is not to be set aside because the judge who tried the cause, or the judges who sat in review, are of the opinion that, upon the facts, the verdict ought to have been otherwise. But juries are not infallible. They are, individually and collectively, subject to the ordinary infirmities of human nature, and cases do occur where, if the court did not interpose and set aside the verdict, it would amount to a denial of justice. By doing so no right is taken away. The effect of setting aside the verdict is simply to subject the case to further consideration by another jury, and even this has its limits; for, if the question be one of fact upon which the testimony is conflicting, the" court will, after three trials with the same result, refuse, at least in this State, to interfere any further with the verdict. (Fowler v. Etna Ins. Co., 7 Wend. 270" court="N.Y. Sup. Ct." date_filed="1831-05-15" href="https://app.midpage.ai/document/fowler-v-ætna-fire-insurance-5513728?utm_source=webapp" opinion_id="5513728">7 Wend. 270 ; Talcot v. Commercial, &c., Ins. Co., 2 Johns. 124.)
This supervisory authority over the verdict of a jury, even upon a question of fact, is a most salutary one, and in the language of Graham, no lover of justice would wish to see it crippled or narrowed, as it might otherwise be in the power of juries to trample upon justice.- (Graham on New Trials, 537.) In respect to the limitation upon its exercise, I fully subscribe to all that was said by Judge Potter in the case to which the appellant has called our attention (Morse v. Sherrill, 63 Barb. 27). In my judgment, this case comes exactly within the rule laid down by him as follows: where the verdict “ is so against a striking preponderance of the evidence^ that a common exercise of judgment demands its reversal.”
The, judge below has shown this so, clearly and fully in the elaborate opinion delivered by him, as to make it unnecessary for us to go over the case in detail, the testimony in which embraces more than 300 printed pages, as it would be but to re-enumerate the evidence as he has presented it, and repeat respecting it what he has said. I shall therefore merely state the leading points in a summary way. The verdict, which'is for $31,874 73, rests solely upon an oral statement made by the plaintiff, as a witness on his own behalf, *505which is not only intrinsically improbable in itself, blit is in conflict with the rest of the testimony in the case. The appellant insists that the plaintiff’s statement is supported by the consideration that there may have been a motive on the part of the bank or its officers to suppress the missing checks, because, if they were forged, the loss arising from paying them would fall upon the bank, in respect to which it is sufficient to say that the defendant’s evidence can, in the like manner, be supported by the consideration that the missing checks may have been lost or abstracted through the plaintiff’s instrumentality, as they were picked out by the book-keeper, Porter, and handed to the assistant receiving-teller, for the purpose of being written up in the plaintiff’s pass-book, and returned to the book-keeper, the plaintiff having constant access to his bank-book, which was left by him in the bank, and called for whenever he wanted to make a deposit. The intrinsic improbability of the plaintiff’s statement is, that after his attention was called to the fact in 1865, by the entries and balance of his book in that year, that twenty-three of the vouchers for payments on his account by the bank, between July 12th and October 19th, 1864, to the amount of $27,149 90, were missing, that he suffered this large amount to remain in the bank, drawing no interest for eleven years, when the interest upon it would be nearly equal to the principal, without making any formal demand of it from the bank, or taking any steps to enforce the payment of it, although during the whole of that time he continued to be a customer of the bank, and his bank-book during that period had been balanbed twenty-three times.
Though the plaintiff was in business in this city, as a wholesale and retail grocer, doing, as he says, a large business during the period when these missing checks were paid, he, according to his account, kept no cash-book, and made no entry of his payments in any book, because, he says, as a general rule, he paid for what he bought in cash, and would only sometimes give a check; and he can give no account of any of his business transactions from July 12th to October 19th, 1864, on the ground that all his books and papers dur*506ing that period are lost, a period during which the bank paid out $27,149 90 on what purported to be checks drawn by him, the paying-teller of the bank who received and paid them as genuine being now dead, and the president of the bank being also dead, to whom the plaintiff said he complained (a year and a half after the book-keeper had been promising to produce the missing checks) that the bank had been charging him with monej-s that he had never drawn for, upon which, he says, the president went with him to the book-keeper, and the book-keeper said that he would give him the checks when he could put his hand on them, all of which the book-keeper denies, swearing that the plaintiff never made any complaint about the missing checks until ten years after they were entered as missing in the plaintiff’s passbook.
That these checks were received and paid in the ordinary course of business appears by the books of the bank, kept as the record of its daily transactions, and their existence is proved by the testimony of the book-keeper, the assistant receiving-teller, and a check clerk.
The plaintiff does not swear that he did not draw these missing checks, his testimony being that the amounts are amounts for which he never drew them, leaving the inference that some unknown person had fraudulently altered them, for he avoids distinctly swearing that he did not draw the checks, which is subject to the suspicion suggested by the respondent, that his testimony was guarded in this respect, to avoid the hazard he might incur if the checks or some of them should be found, and shown to be in his handwriting, a circumstance to which the judge below attaches peculiar significance.
That two of these missing checks were given in payment of amounts due by him to a firm with which at the time he was dealing was proved by evidence of the most conclusive character, and there was evidence, though not as complete in its character, indicating that three other of the missing checks had been given in payment of claims due by him to persons with whom, at that time, he dealt.
*507It was shown by the cheek clerk of the bank at that time, who had entered the bulk of the plaintiff's checks from the time that he opened his account eight years before, and who had therefore become familiar with the plaintiff's handwriting and knew his signature, that this clerk received nineteen of these missing checks in the regular course of business, and entered them, the signatures of which he recognized at the time to be in the handwriting of the plaintiff, and that they came to him from the paying-teller, who is now dead, by whom they had been previously examined and passed, and that the remaining four missing checks came into the possession of the assistant paying-teller, being received by him in the regular course of business from the paying-teller, and entered by him at the dates when they were received, the signatures to which he then, and at the trial, believed to have been in the handwriting of the plaintiff, he also being familiar with the plaintiff’s handwriting. To which is to be added the testimony of the book-keeper, that when the plaintiff received his bank-book balanced, with the twenty-three cheeks marked as missing, and received with it the remaining forty-nine vouchers, the plaintiff received the book and the vouchers without making any objection then, or at any other time, until ten years afterwards, as before stated.
At the period when these missing checks were paid, the plaintiff was a man in comparative affluence, but at the time of the trial had become so reduced as to have no property except what he wore upon his person. A judgment was recovered against him, which remains unpaid, and under which he was examined on supplementary proceedings to ascertain whether he had any property to be applied towards the payment of it, in which examination he did not disclose that he had this large claim against the bank, being asked, as he said, only whether he had any real estate, implying thereby that the usual inquiries to ascertain whether the judgment debtor had any personal property, was not made in his case.
This preponderance of testimony, and the character of it, is so striking, and, in my opinion, so overwhelming, that it is impossible to account for the verdict of the jury, except *508upon the ground of bias against the deféndants as a banking institution, upon some such assumption as that, being a bank, they should be held responsible for this large amount if they could not produce the original vouchers to show that they had paid it.
The order granting a new trial, in my opinion, should be affirmed.
Labbemobe and Van Hoesen, JJ., concurred.