
    Jonathan L. Slater, Resp’t, v. Casper J. Drescher, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 20, 1893.)
    
    1. New tblal—Waives. '
    A plaintiff by omitting to ask for a .direction of a verdict in his favor does not preclude himself from moving for a new trial on the ground that the verdict was against the evidence or the weight of evidence. That is the rule only where the new trial is asked for on the ground that there was no evidence to support the verdict.
    2. Same.
    The general term will not interfere with the exercise.of the discretion of the trial court in granting one new trial unless it is quite apparent that there has been an abuse thereof.
    Appeal from an order of the Brie circuit setting aside a verdict of the jury rendered in favor of the defendant for no cause-of action upon the minutes “as against the evidence and the weight of the evidence,” and granting a new trial.
    
      Thomas Cary Welch, for app’lt; Henry W. Brush, for resp’t
   Haight, J.

This action was brought to recover the balance -due for services rendered by the plaintiff as an attorney and counsellor at law for the defendant in two certain actions to foreclose mechanics’ liens, and for divers other legal services and consultations. An account had been rendered by the plaintiff for $280.07, upon which the sum of $125.00 had been paid. The defendant claimed that when the account was rendered he disputed the amount thereof, and that in view of a settlement of the two actions without trial the plaintiff agreed to accept $187.12 in full, and that the same was to be paid by crediting thereon the amount of the defendant’s bill against him for plumbing, and the balance, $125, in cash, which was paid. His contention is supported by the evidence of himself, his son and book-keeper, and the verdict was in his favor. The trial court granted a new trial, as we have seen, upon the ground that the verdict was “ against the evidence and the weight of evidence.” The plaintiff asked for a new trial upon the ground that the verdict was against the weight of evidence, and it is upon that ground alone that the order must be supported if at all, for it cannot be successfully claimed that there was no evidence to support the defendant’s contention.. When the money was paid over by the defendant to the plaintiff he gave a receipt back therefor, and in such receipt he acknowledged the payment of the money to apply upon the account as rendered, etc., and inasmuch as this receipt was taken and held by the defendant, it becomes some evidence in support of the plaintiff’s claim. Whether this receipt when taken by the defendant was .read over by him so that he fully understood its contents does not appear. .

It is quite possible that this court upon the evidence as it stands would not have felt justified in ordering a new trial. But the trial court had the advantage of hearing and seeing the witnesses when they delivered their testimony, and is therefore better able to judge as to their character and truthfulness, and it is the practice to allow that court considerable latitude in the granting of new trials where the verdict is against what it believes to be the facts.

The plaintiff did not ask the court to direct a verdict in his favor. It is now claimed that because of such omission he admitted that there was evidence sufficient to carry the case to the jury, and that in submitting it to the jury he took his chances upon recovering a verdict. It is quite possible that such is the rule where the new trial is asked for upon the ground that there was no evidence to support the verdict. In such a case the ruling is upon a question of law and may be followed by an exception. Peake v. Bell, 7 Hun, 454; Mortimer v. Doelger, 11 N. Y. Supp., 583; 33 St. Rep., 705; Keeler v. Dyeing Establishment, 54 N. Y. Superior Ct, 369.

But this is not the rule where the new trial is asked for upon the ground that the verdict is against the weight of evidence. Such a motion is authorized by the Code and a verdict cannot be directed by the court upon the ground that the evidence of one party predominates over that of the other. Allgro v. Duncan, 24 How. Pr., 210; affirmed 39 N. Y., 313; McDonald v. Walter, 40 id., 551; Barrett v. Third Avenue R. R. Co., 45 id., 628-632.

In Shearman v. Henderson, 12 Hun, 170, Talcott, J., criticised Peake v. Bell, supra, and refused to follow it. The criticism is just, provided the motion in that case was made upon the ground that the verdict was against the weight of evidence, or on account of insufficient evidence, which means the same thing. But, as we understand, that decision is placed upon the grounds that there was no evidence to sustain the verdict. The trial court in determining whether a verdict should be set aside as against the weight of evidence must be controlled largely by the circumstances .surrounding each case. There is no well defined rule by which he must be governed. The motion is addressed to his sound discretion, and he should inquire as to whether or not substantial justice has been done. The general term doubtless has the power to review the discretion of the trial judge as exercised upon these motions, and is the only court that has such power. It has been its policy, however, not to interfere with such discretion in awarding one new trial unless it was quite apparent that there had been an abuse thereof. Barrett v. Third Avenue R.R. Co., supra ; Bannon v. McGrane, 45 N. Y. Superior Ct., 517; Langlois v. Hayward, 36 St. Rep., 59.

The order should, therefore, be affirmed, with costs of this appeal to the respondent.

Dwight, P. J., and Lewis, J., concur.  