
    WALTER E. KILPATRICK, et al., Respondents v. COLUMBIA BANK, Appellant.
    
      Verdict, direction of—New trial, verdict against the evidence.
    
    The plaintiffs made out a slight cas.e. On the close of the testimony on both sides the case was submitted to the jury who found for the plaintiffs ; but in view of all the evidence in the case, Held, that a motion made by defendant, at the close of the evidence on both sides, for a direction of a verdict in its favor, should have been granted; and the judgment and the order denying a motion for a new trial were reversed and a new trial ordered.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.
    
      Decided June 28,1889.
    This is an appeal from a judgment entered upon a verdict in favor of the plaintiffs against the defendant, and from an order denying the defendant’s motion for a new trial.
    The action was brought to recover from the defendant a certain sum of money which the plaintiffs claimed the defendant had received to the use of plaintiffs.
    The answer, besides containing a general denial, alleged that the money mentioned in the complaint was paid by the plaintiffs to the defendant as the purchase price of certain notes made by one Myers, which notes were then held by the defendant.
    The facts sufficiently appear in the opinion.
    
      Adolph L. Sanger, attorney and of counsel, for appellant.
    
      Kelly & MacRae, attorneys, and Wm. F. MacRae, of counsel, for respondents.
   By the Court.—Sedgwick, Oh. J.

In this case, I think the motion for a new' trial, on the ground that the verdict was against the evidence, the defendant having at the trial claimed that the court should direyt a verdict, because the preponderance of evidence was with the defendant, should have been granted. The plaintiffs made out a slight case. Many probabilities, intrinsic in the circumstances, were in favor of defendant. The defendant’s witnesses gave substantial testimony in contradiction of plaintiffs. In rebuttal the plaintiffs called as a witness, a person for whose credibility they vouched by putting him under oath. That witness’s testimony told for the defendant and against the plaintiffs, so clearly and in such substantial respects, that to me it appears certain that the preponderance of evidence was with the defendant. The motion should have been granted.

I think, also, that the verdict should have been directed for defendant, as requested on the trial.

Judgment and order appealed from reversed, and a new trial ordered, with costs to appellant to abide the event.

Freedman and Truax, JJ., concurred.  