
    Walbridge et al. v. Graham.
    
      (City Court of New York, General Term.
    
    December 7, 1892.)
    Appeal—Review—Evidence.
    Where no motion was made for a nonsuit, or for a verdict for defendant, nor exception taken to the judge’s charge, the overruling of the motion for a new trial on the ground that the verdict for plaintiff was against the weight of evidence will not be disturbed on appeal.
    Appeal from trial term.
    Action by George O. Walbridge and others against James F. Graham for goods sold and delivered. From a judgment rendered for plaintiffs, defendant appeals. Affirmed.
    Argued before MoGown, Van Wyck, and McCarthy, JJ.
    
      Brooke & Brooke, for appellant. Abraham Gruber, for respondents.
   McCarthy, J.

This action was brought for goods, wares,' and merchandise sold and delivered to the defendant on and between April 21, 1891, and October 31,1891, of the value of $1,539.33, on account of which was paid the sum of $1,300, leaving due and owing to plaintiffs from defendant the sum of $239.33, with interest from October 31, 1891. The defendant, by his answer, admits as follows, to wit: “ That on and between the 21st day of April, 1891, and October 31, 1891, the plaintiffs performed certain work and labor, and supplied certain material, but denies that the same was worth $1,539.33, or that that amount was agreed upon between the parties, and denies that any sums whatsoever are due on account of such goods and services: and the defendant, further answering, avers substantially to the effect that the work, services, and materials furnished by the said plaintiffs were inferior to that agreed upon and contracted.for.” The plaintiffs, at the trial, produced two witnesses, George 0. Walbridge, one of the plaintiffs, and Patrick Flynn, an employe of the plaintiffs; and the witnesses produced for the defense were the defendant and Frank A. Kirtiand. Their testimony constitutes all the evidence in the case. The kind of goods sold to the defendant was fireplact gratings and seats, mantels, tiling, and wainscoting, etc. This the plaintiffs contracted to place in a thoroughly workmanlike and proper manner, and to furnish proper and suitable materials; and whether or not such contract was substantially complied with was the only issue presented at the trial. This case involved a question of fact, and was fairly submitted to the jury, who rendered their verdict for the sum of $246.50. After this verdict the defendant’s counsel moved for a new trial, on the ground that the same was against the weight of evidence, and upon all other grounds specified in section 999 of the Code of Civil Procedure, which was denied, and exception taken. Upon the trial the defendant did not move the court for a nonsuit, or ask the court to direct a verdict for the defendant. No exceptions were taken to the judge’s charge. We find no errors committed on the trial, and the judgment should be affirmed, with costs. All concur.  