163 N.Y. 397 | NY | 1900
This action was brought by the indorsee against the drawer to recover the amount of a check. The case was submitted to the jury on specific questions of fact, and no general verdict was rendered. The first question was, "Has the plaintiff satisfied the jury by a fair preponderance of evidence that she has purchased the check in good faith and paid value therefor?" This the jury answered in the affirmative. It is not necessary to refer to the disposition of the other question submitted to the jury. On this finding the trial court directed a judgment to be entered for the plaintiff, which judgment has been affirmed by the Appellate Division.
There have been three trials of this action, all of which have resulted in favor of the plaintiff. The first verdict was set aside by the Appellate Division as being against the weight of evidence. (71 Hun, 402.) The second met with similar fate, on the ground of misconduct on the part of one of the jurors. (
It is claimed by the appellant that the Appellate Division having held that the verdict was against the weight of evidence, it was the duty of the trial court to nonsuit on the subsequent trial, the evidence being substantially the same as upon the former trial, and the refusal of the court to dismiss the complaint for this reason is the first error complained of. In support of this contention the appellant relies on Cohn v.Mayer Brewing Co. (
In Bagley v. Bowe (
In Linkhauf v. Lombard (
But to excerpt a single sentence from a judicial opinion and construe and interpret it apart from the context of the opinion in which it is found, and without regard to the subject-matter under discussion, is not only unreasonable, but, at times, leads to erroneous conclusions.
This court has always disclaimed authority to review the determination of the courts below on questions of fact, except in a limited class of cases. (Mead v. Bunn,
In the case before us the plaintiff testified to a state of facts which, if believed, entitled her to recover. Her story was not incredible, as a matter of law, though it contained improbabilities and may have been open to suspicion. In some matters she was contradicted by the defendant's witnesses. The jury might have discredited the plaintiff, and the court, in its exercise of its discretion, might have set the finding in her favor aside and awarded a new trial, but the power to review the question of fact ceased with the Appellate Division.
The plaintiff testified to having acquired the check five days after its delivery to the drawee, and the appellant contends that this lapse of time rendered the paper overdue and subjected it to any defense that might exist between the original parties. Such does not seem to be the law. (Daniels on Neg. Instr. § 1684;Herrick v. Woolverton,
The judgment appealed from should be affirmed, with costs.
PARKER, Ch. J., GRAY, BARTLETT, MARTIN, VANN and WERNER, JJ., concur.
Judgment affirmed. *404