
    William Sharp, Plaintiff, v. Augustus W. Whipple, Defendant.
    1. A general verdict for the plaintiff taken by consent on a concession that “ there could be no controversy as to what facts the evidence established, and that the case presented only questions of law,” must be deemed at least as favorable to the plaintiff upon the facts in issue as it would be if such verdict had been found by the jury upon a submission of the issues to them upon the evidence.
    2. In such case for the purposes of a hearing upon the questions of law arising on the trial, the plaintiff is entitled to regard the issues of fact as found in his favor.
    3. And where in such case the parties agreed upon the form of a verdict and consented thereto, and in addition to a general verdict for the plaintiff they agreed to a special finding of certain facts-, upon which questions of law arose, such general verdict must stand unless such special finding is inconsistent therewith; and though the whole verdict is taken “subject to the opinion of the Court,” the defendant is not at liberty to claim on the hearing that the issues of fact were not established by the evidence in favor of the plaintiff, except so far as such special finding may control them.
    4. In the case last stated, the special finding agreed upon is to be taken as establishing the facts therein stated, and the general verdict as establishing all other facts in issue, in the plaintiff’s favor.
    (Before Duer, Oh. J., Slosson and Woodruff, J. J.)
    Submitted, October, 1857;
    decided, July 3d, 1858.
    After the argument of this cause, and the decision made therein, at the June Term, 1857 (reported 1 Bosw., 557), the defendant applied for, and, upon grounds which it is not material to state, obtained a resettlement of the case. As resettled, the case showed that instead of the statement that the Judge presiding at the trial “then charged the jury and directed them to render a special and general verdict;” and that “the jury, having retired, returned into Court and rendered the following verdict,” as was contained in the case as then submitted to the Court; the case was and the case is now settled so as to read:
    “The testimony here closed. It being conceded that there could be no controversy as "to what facts the evidence established, and that the case presented only questions of law, and the defendant desiring that they should be heard and decided at the General Term in the first instance; the form of a verdict was agreed upon, which was rendered by the jury, without the Judge charging the jury upon any legal proposition or deciding any principle of law affecting the merits, which verdict was in the words following, viz.” Whereupon the verdict follows in the terms set forth in the original case (see 1 Bosw., 562), adding, however, to the amount of the general verdict so that the same now reads “they also find a general verdict for .the plaintiff for $6,075.66, which verdict was tabeen by consent of the parties, subject to the opinion of the Court, at General Term, on the questions of law arising in the case,” &c., &e.
    And the order of the Court touching the hearing of the cause is amended so as to read “ the Court ordered that all the questions of law arising in the case be heard in the first instance at General Term,” &c., &c.
    
      Upon the resettlement of the ease, the same was again submitted to the General Term, before the same Justices, for farther consideration.
    
      Edwards Pierrepont, for the plaintiff.
    
      John Graham, for the defendant.
   . By the Court.

Woodruff, J.

—Upon a review of the case as now submitted, it appears that what was said in the opinion pronounced at the June Term, 1857, in regard to the presumption arising upon the case as then presented, that the jury were properly instructed as to all questions of law which were material as a guide to their deliberations, and that their general verdict for the plaintiff must be deemed to have been found under those instructions, is not applicable to the case as- it actually occurred, and as it now, on a resettlement, appears.

As resettled, the case now shows that it was conceded that there could be no controversy as to what facts the evidence established, and that the case presented questions of law only.

It is manifest that a verdict for the plaintiff taken by consent, in pursuance of such a concession, must be deemed at least as favorable to him upon the facts in issue, as it would be if found by a jury. And after such a concession, the defendant certainly cannot ask that it be set aside upon any question of fact which may be involved in the issues between the parties; all such issues must be deemed settled by mutual consent.

In substance and effect the case now reads, that by concession of the parties, the controverted questions of fact are settled and agreed upon as follows: First. That certain special matters of fact are as set forth in the special findings now agreed upon; and, Second. All other questions of fact presented by the issues in the action are established in favor of the plaintiff. In other words, upon the issues the plaintiff is entitled to a verdict, except so far as certain agreed facts specially found may show that he is not entitled to recover, or may limit or diminish the amount of the recovery.

The consenting to and taking such a verdict, subject to the opinion of the Court upon the questions of law arising in the case, preserves to the parties the right to discuss the exceptions taken on the trial, if any; the question whether a nonsuit moved for ought to have been granted, and whether upon the facts found as above stated the plaintiff is entitled to judgment, or to what extent, if any, the general verdict should be modified by the special findings.

A verdict subject to the opinion of the Court, where the facts are controverted and the evidence conflicting, would not be proper. This we have often held, and such a verdict taken without consent and by" order of the Court, would in such case be a mis-trial. But where the parties agree that there can be no controversy as to what facts the evidence establishes and proceed to embody the result of the proofs in an agreed verdict, that verdict must be taken to establish the facts according to its tenor.

It is not apparent then, that the resettlement of the case, has presented it to our consideration any more favorably to the defendant than it was before, in this respect.

In regard to the questions of law subject to which the verdict was taken, it may be that the case is more fully open to discussion than was intimated in our former opinion. But even that is not clear. If it is, then it must suffice to observe that although we intimated that the only questions then properly presented, were whether the nonsuit ought to have been granted, and whether, upon the special finding, the sum due to the defendant from J. De W. Spurr should be deducted from the verdict, yet we followed the course pursued by the counsel in arguing the cause, and considered the other questions raised. We now find no reason for changing the opinions then expressed, and our opinion upon the questions of law then given, must be taken as our opinion upon the same questions as now resubmitted to us.

Judgment should therefore be rendered for the plaintiff on the verdict.

Judgment ordered accordingly.  