42 Barb. 411 | N.Y. Sup. Ct. | 1864
By the Court,
As this case is presented to us, I was inclined to think, upon the argument, that there should he a new trial, on the ground that the case should have been submitted to the jury. The requests 'to charge, the charge as stated, and the exceptions to the charge are all out of place in the case. The cause was not submitted to the jury, and there could therefore have been no charge, or exceptions to the charge or requests to charge. The circuit judge took the case from the jury, and directed a verdict for the plaintiff, and a single exception to such disposition of the cause was all that was necessary to raise ■ every question essential for the purpose of the review of his decision. What is stated by way of a charge may have been the reasons assigned by the judge for the decision then made in disposing of the cause. The action being replevin, presented a single issue in respect to the title to the timber in question. It was levied upon by virtue of an execution against the defendant, was at the time in his actual possession, and as some of the proof tended to show, was at the time claimed by him as his property. The case was disposed of upon the , view, that upon the undisputed testimony in the case he had an interest in the timber, subject to levy and sale upon execution. It appears from the testimony of the witness Bitley, who it was claimed was the real owner of the timber in question, that the defendant, before the 13th of December, 1862, had been,engaged in cutting and getting out timber on different lots in Seneca county, and on ihat day he applied to Bitley to make an arrangement for him, Darby, to cut 15 or 20,000 feet of timber for him, the witness, and deliver
The timber in question was not purchased of either of the persons named in said receipt, but it was in fact paid for by the defendant with money advanced to him by Bitley, who claimed it under the original contract. In taking the case from the jury, the circuit judge must have assumed that they would find that the defendant was the agent of Bitley in the purchase of the timber in question, in accordance with the testimony of Bitley and the defendant. There was really no conflict of testimony on this point. The argument of the . defendant’s counsel here is that this question should have been submitted to the jury, and this is the chief error complained of. But as there was really no substantial conflict in the evidence, it was not error to take the case from the jury, upon that view of the case and upon the assumption that the facts were as stated by the witness Bitley, which was the most favorable view of them for the defendant that could have been taken by the jury upon any submission of the case to them. And such was the view of the case taken by the circuit judge in what is erroneously called a charge in the case before us. The counsel for the defendant claims
New trial granted.
Welles, J. 0. Smith and JS. Darwin Smith, Justices.]