
    Morris Heimerdinger, Respondent, v. Jacob Finelite, Appellant.
    (City Court of New York — General Term,
    January 1895.)
    Where the case presented by the proofs is such that a verdict for the defendant would be set aside as against the evidence, a direction of a verdict for the plaintiff is proper.
    Corlar, J., dissents.
    Appeal from judgment entered upon verdict directed in favor of plaintiff.
    
      Jforms Ooodhart, for appellant.
    
      Otto Horwitz, for respondent.
   Ehrlich, Ch. J.

The defendant, who was sued as indorser of a promissory note, pleaded that at the time of the indorsement he was of unsound mind and incapable of understanding the nature of his act or yielding a free assent thereto.

The proofs showed that'prior to the indorsement the defendant had met with an accident, but they fell far short of establishing that he was non compos mentis. Indeed, they were so slight that a verdict in favor of the defendant on his plea would have to be set -aside as against the evidence; and in such a case the consensus of authority is that the trial judge may direct the only verdict the proofs admit of, which, in this instance, was that directed in favor of the plaintiff.

There was no error in excluding evidence, and nothing in the case which requires a new trial.

The judgment must, therefore, be affirmed, with costs.

Fitzsimons, J., concurs; Conlan, J., dissents.

Judgment affirmed, with costs.  