259 A.D. 796 | N.Y. App. Div. | 1940
Judgment and order reversed on the law, with costs, and complaint dismissed, with costs. Memorandum: The court correctly charged the jury just before it retired for deliberation that if it were found as a fact “ that there never was any intent or that there was no intent at the time this bond was entrusted by the Fidelity & Deposit Company to Mr. Cohen, that it should be used as a valid bond for the purposes for which it was written unless the collateral was put up, that the verdict of the jury must be for the defendant.” There is not any evidence in this case from which it could be found that there was any intention that the bond should be used before and until the collateral was put up. Therefore, the verdict of the jury is contrary to the evidence and the defendant’s motion for a nonsuit should have been granted. All concur. (The judgment is for plaintiffs in an action against a surety on an undertaking filed in attachment proceedings. The order denies a motion for a new trial.) Present — Crosby, P. J., Cunningham, Taylor, Dowling and McCurn, JJ.
