38 N.Y.S. 883 | N.Y. App. Div. | 1896
The real ground upon which the verdict was set aside was that it was unsupported by the evidence. The learned trial judge evidently regarded the verdict as an improper one, to be rendered upon the evidence in the case. He refused ■ to hear any argument upon the motion, but granted it as soon as it was made, remarking that he regarded the verdict as a present or gift to the plaintiff of $15,000, to which he had not a shadow of right, and he desired to place on record his disapproval of the verdict. He heard all the evidence, and seems to have had, at the close of the case, very decided views as to what the verdict should have been. We have examined' "the record arid the evidence, and may have formed our judgment ■as to what the verdict should have been, but it must be remembered that if the case was oné for the jury the verdict was not to be the-verdict of the trial court or of this court, but of the jury, and the •question is not whether the trial court was, or this court is, satisfied with the verdict, but whether it is a .case in which the parties had a, right to the judgment of twelve men as to the facts. If the Verdict ■of a jury may be set aside in any case where the court is not satisfied with' it, if the court must be satisfied as well as the jury, then the court may as well dispense with the' jury altogether and make the decision itself. ' The jury is entirely useless and unnecessary; This is not of course the rule. When the case is one that should properly be- submitted to the jury, its verdict must stand whether it is satisfactory to the court or not.
The parties have a right to try the case before-a jury, and to have
The defendant, by its answer and on tire trial, admitted substantially all the facts alleged by the plaintiff as a basis for a recovery of the $15,000, and his recovery could only be defeated by proving the parol contract to turn over the $15,000 of stock to the defendant after it had been issued to the plaintiff, and the performance of that contract by turning over the stock. The defendant had the burden of proof upon these questions. In the absence of any proof with reference to these questions, the plaintiff, upon the other con-. ceded facts, would have been entitled to a verdict, which the court might well have ordered. The defendant gave its proof as to the parol agreement, largely by witnesses who were interested in the event of the action, as plaintiff, who contradicted them, was also interested. The question of the credibility of all these witnesses was for the jury and not for the court. q
The only agreement in writing between the parties was the one upon which plaintiff based his right of action. This was under seal, and it made no reference to any such agreement as alleged by defendant. It is said by the defendant-that the contract was carried out by the issue of the certificates. for 150 shares of stock, as well as the 200 shares and the indorsement of the whole by plaintiff. That he did indorse the whole is conceded, but that the transaction was an issue to, and- transfer by, him of the stock under the parol agreement alleged, he denies.
Upon an examination of all the evidence we may say that we would have been better satisfied had the verdict been the other way. The balance of probabilities impresses us as inclining in favor of- the defendant’s claim.. But the final preponderance in its favor upon all the evidence is not -so great as to bring the case within- the rule Which permits a verdict to be set aside only when it is reached through partiality, passion or prejudice.
We conclude, therefore, that the order setting aside the verdict was erroneouSpand it should be reversed, with costs.
■ Yah Brunt, P, J., Barrett, Rumséy and Patterson, JJ., concurred.
Order reversed, with costs.