Niehaus v. McNulty, 151 N.Y.S. 1133

Niehaus v. McNulty

151 N.Y.S. 1133 | N.Y. App. Div. | 1915

Judgment and order of the City Court of Hew Rochelle reversed and a new trial ordered, costs to abide the event. The evidence clearly establishes *936plaintiff’s purchase and original ownership of the horse which is the subject-matter of this controversy There is no evidence of a gift to defendant, nor of any agreement by which he should retain the horse as security for that sum, if any, which might be due him from plaintiff for services. Defendant testified that he did not know and did not want to know whether plaintiff owed him anything or not. In the face of such testimony the verdict of the jury that the horse was given to defendant in return for services rendered is utterly without foundation. The court should have directed a verdict for plaintiff. As it is possible that some further evidence may be introduced respecting the right to possession of the horse, we have concluded to order a new trial. Jenks, P. J., Burr, Thomas, Rich and Putnam, JJ., concurred.