10 N.Y.S. 340 | N.Y. Sup. Ct. | 1890
We find nothing in the defendant’s exceptions to the-charge which would justify a reversal of the judgment appealed from. The court, in effect, charged that, if the defense set up in the answer was established, the plaintiff could not recover. This was as favorable to the defendant as he could properly ask.. That the charge was more favorable to him than he asked or was entitled to is not a ground for reversal. Besides, the jury have expressly found that the agreement set forth in the answer was not made, and hence, if the charge as to the legal effect of such an agreement was erroneous, the defendant could not have been injured by it. The court properly charged'that the burden of establishing the affirmative defense set up by him was upon the defendant. The undisputed proof was that the $1,500 check in question was to be left with the defendant for the plaintiff. Such were the directions of the plaintiff to the witness Brown, who received it for him, a.nd it was in pursuance of such directions that it was received by the defendant, as is shown by his receipt given to Brown. Under these circumstances, the burden of establishing the defense relied upon was to be borne by the defendant. Bor do we think that the appellant’s contention, that the failure of the jury to answer the third question submitted constituted such a mistrial as requires a reversal of the judgment, can be sustained. It is quite manifest that, if the defendant failed to establish his defense, the plaintiff was entitled to the recovery awarded him. Therefore, when the jury answered the first two questions in the negative, it was a complete determination by it that the defense was not sustained, and that the plaintiff was entitled to the general verdict rendered. The validity of the verdict in this case is fully sustained by the doctrine of the case of Murray v. Insurance Co., 30 Hun, 428, 96 N. Y. 614, and the same distinction exists between the case at bar and the case of Ebersole v. Railroad Co., 23 Hun, 114, as is there pointed out. Moreover, there was no exception to thq form of the verdict, nor objection to its entry. There was a conflict in the evidence upon the' questions raised by the defendant’s answer. They were fairly submitted to the jury, and it found for the plaintiff. There was no such preponderance of evidence in favor of the defendant as requires or would justify us in disturbing the judgment. We think the judgment should be affirmed. Judgment and order affirmed, with costs. All concur.
