Sickels v. Gillies, 45 How. Pr. 94

Sickels v. Gillies

45 How. Pr. 94 | The Superior Court of New York City | 1873

By the cotort, Freedman, J.

On the former appeal the general term of this court held that the facts set up in the third paragraph of the answer amounted to a plea of total failure of the consideration of the note, and that, the suit being between the original parties, and it not appearing that the plaintiffs sustained any other relation to the note than that of mere agents for their brother, John Sickels, the evidence offered in support of such plea, and also with a view to sustain the defense of payment, was erroneously excluded.

*96Upon the second trial, which resulted in the appeal how before us, defendants’ evidence in support of that plea was admitted by the court, and then the plaintiffs showed that they and their brother were all present when the deposit was made; that the money was not the money of John Sickels, but that it belonged to the plaintiffs, or, at any rate, to one of them — Adelia — and that the plaintiffs deposited the money with the defendants for .safe keeping, because they believed the defendants to be responsible persons.

The statements of the parties, being diametrically opposed and irreconcilable, were submitted to the jury, and the latter found the fact in favor of the plaintiffs. This finding cannot be disturbed. By their omission to move for the direction of a verdict, the defendants stand precluded from alleging that the verdict is against the weight of evidence (Rowe agt. Stevens, 48 How., 10; S. C., 12 Abb., N. S., 389).

The exceptions presented by the case are, therefore, all that we can look at. Those which relate to the exclusion of evidence have been neither set forth in the printed points nor alluded to on the argument, and, for that reason, may be deemed to have been waived. The others, which relate to the charge of the court, and his refusal to charge, we have carefully considered and found untenable.

The judgment and order appealed from must be severally affirmed, with costs.

Monell and Cubtis, JJ., concurred.