Schuler v. Roberts

21 N.Y.S. 27 | N.Y. Sup. Ct. | 1892

LAWRENCE, J.

There was no exception taken .to the charge of the learned justice who presided at the circuit at w'hieh this cause was tried, and the law was correctly stated by him to the jury. There was a plain and palpable conflict' between the evidence given on the part of the plaintiff and defendants in respect to the interview between the plaintiff and the defendant Roberts on the 28th of January, 1891, and as to the interview between her and defendant Collin and the witness Keck on the 29th' of January, 1891, after the levy had been made and the store closed. The jury were judges of the credibility of the witnesses, and, having found for the plaintiff, their verdict cannot be disturbed unless it is apparent that some error was committed in the rulings of the court in the reception or conclusion of evidence, or that the verdict is so excessive as to show that it was the result of passion, malice, or prejudice on the part of the jury. The" exception to the refusal of the court to dismiss the complaint at the close of the plaintiff’s case is not well taken. The court could not assume as matter of law upon the evidence.then before it that the plaintiff’s statements were untrue, nor dismiss the complaint on the ground that there was no evidence to connect the defendants Roberts & Collin with the deputy sheriff; nor that they were not bound by the deputy’s admission that the sheriff had obtained bonds indemnifying him in making the levy. The motion was therefore properly denied. The exception to the ruling of the court, permitting an answer to the question put to the deputy sheriff in regard to the direction given to him by the plaintiff’s attorneys to make the levy, is also unavailing. The question was proper for the purpose of showing how the levy came to be made; and even if the defendants could not be held liable, as the learned justice charged, for any wrong committed by their attorneys without their knowledge or acquiescence, the question was proper, in view of the evidence already in the case tending to show that the defendants, after learning of the levy, had acquiesced in it, and sought to compel payment by the plaintiff of her husband’s debt through its instrumentality. When it appeared that "the direction,to the sheriff was not given by the attorneys, but by Mr. Hallen, a lawyer who was in their employ, it was not error to refuse to strike the testimony out on the ground that Hallen’s authority was not shown. Hallen had had charge of the supplementary proceedings under which the plaintiff had been examined as a wdtness, and there was nothing to justify the assertion that the plaintiff’s attorneys did not authorize and sanction his proceedings. The evidence already given certainly tended to show that the execution had been issued at the instigation of the defendant. It was a circumstance from which the jury could fairly infer that the execution was issued by the direction of the sheriff; that the levy was made alter Roberts had had the interview with the plaintiff at the store, and on the same day. The defendant Collin, at the interview on the 29th of January, 1891, the next day, saw that the store was locked up; and, as the case stood on the plaintiff’s testimony, he had not in any manner disavowed the levy. On the contrary, the plaintiff had testified that he requested her to sign a paper, and stated that if she would do so he would within an hour open her place of business, and that she could then go on with the business. After that, as the plaintiff testified, Keck, the defendants’ salesman, who had accompanied Collin, was at the store between January 29th and February 2d, and nothing was done towards opening the store until the 2d of February. It is clear, then, that, if the plaintiff’s testimony is to be believed, the defendant Collin had had personal notice of the locking up of the store, under some process in the defendants’ favor, as early as January 29,1891; that he did not disavow it; and it might cleanly have been inferred that the process was issued by the direction of himself and his partner. Foo Long v. Surety Co., (Sup.) 16 N. Y. Supp. 424; Duke of Brunswick v. Slowman, 8 Man. G. & S. 317. At the close of the case the defendants’ counsel moved for a direction of a verdict in favor of the defendants Roberts & Collin, and upon the denial of the motion excepted. He also moved to dismiss the complaint as to those defendants, which motion was refused, and he excepted. In these rulings we find no error. The case made by the plaintiff and her witnesses had been contradicted by the defendants and their witnesses, but the court could not usurp the functions of the jury and dispose of the case in the defendants’ favor. It adopted the proper, course, and submitted the case to the jurjq under a charge in which no error was complained of and to which no exception was taken. The verdict which the jury rendered was one which it was competent for them to give. If the plaintiff and her witnesses were worthy, of belief, she had been the victim of a gross wrong, instigated by the defendants Roberts & Collin. And the case was one in which the jury were not limited to awarding merely compensatory damages. In the exercise of their power, under the well-established rules of law, they have awarded to the plaintiff vindictive damages; and as there is no evidence of passion, anger, or malice apparent in their verdict, which, under equally well-established rules, permits us to overthrow it, we are of the opinion that the judgment below was correct, and must affirm both it and the order appealed from,.with costs and disbursements. All concur.