
    Willlam Hulse, Resp’t, v. Samuel B. Nicoll, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 9, 1892.)
    
    1. Verdict—Conflicting- evidence.
    The verdict of a jury rendered on conflicting evidence is conclusive as to the facts.
    2. Trial—Further instructions.
    It is not error to further instruct the jury at their request in open court, in the absence of the defendant and his counsel, where they leave the court and fail to return at the close of a recess.
    Appeal from judgment of the Suffolk county court, entered on .verdict of a jury.
    Action to recover for services as sexton of a church which was-not incorporated, upon an alleged employment by defendant. At the evening recess the defendant ana his counsel went to their respective homes. After the recess the jury returned into court, and stated that they had not agreed and requested further instructions, which were given in the' absence of defendant and his counsel.
    
      Timothy M. Griffing, for app’lt; Benjamin H. Reeve, for resp’t.
   Dykman, J.

This is an action for the recovery of compensation for services as sexton of a church in Shelter Island in Suffolk county.

The action was commenced and tried in a court of a justice of the peace, where the plaintiff obtained a verdict. From the judgment entered upon that verdict the defendant appealed to the county court of Suffolk county, where the cause was retried before a jury and a verdict was again rendered for the plaintiff for the same amount.

Now the defendant has appealed to this court from the judgment entered upon the last verdict.

The claim of the plaintiff was that the defendant employed him to perform the services rendered, and the defense was that the services were rendered gratuitously and without expectation of compensation.

Both parties gave evidence tending to establish their respective positions, and the testimony was contradictory and presented a question of fact for the determination of the jury.

The verdict in favor of the plaintiff settles the facts against the defendant, and it is not a proper case for the interposition of an appellate tribunal.

The case presents no errors of law, and the judgment and order , denying a motion for a new trial on the minutes should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.  