
    Margaret Clinton, Appellant, v. Leonard C. Frear, Respondent, Impleaded with William Russell.
    
      Appeal from a Justices Gourt to a County Court —jurisdiction of the latter to reverse the judgment of the former court —when it should be exercised—when a verdict should not be set aside.
    
    The jurisdiction of the County Court, upon an appeal from a judgment rendered hy a justice of the peace, to review the justice’s decision upon the facts, and to reverse the judgment as against the weight of evidence, was conferred by the amendment of section 3063 of the Code of Civil Procedure effected by chapter 553 of the Laws of 1900. Prior to that amendment, thg^County Court had no power, where the evidence was conflicting, to reverse the judgment on that ground.
    The authority conferred by the amendment should be exercised only when the justice’s judgment is so plainly against the weight and preponderance of the proof that it can be seen that the justice or jury could not reasonably have arrived at the decision made.
    Where a controversy involving a small amount has been tried before a jury several times without an agreement, a verdict finally arrived at by a jury in the matter, which js free from any claim or suggestion of bias or prejudice, should not be lightly disturbed..
    It is not sufficient to warrant the reversal of a judgment, entered upon the verdict of a jury, on the ground that the verdict is against the weight of evidence, that the appellate court has reached a different conclusion upon the facts from that arrived at by the jury, where the evidence is amply sufficient to support the jury’s verdict,
    In order to justify a reversal in such a case, it should appear that the verdict is against the weight of evidence in the sense that the fair preponderance of proof is really on the side of the defeated litigant.
    Appeal by the plaintiff, Margaret Clinton, from a judgment of the County Court of Dutchess county in favor of the defendant, Leonard C. Frear, entered in the office of the clerk of the county of Dutchess on the 31st day of October, 1901, reversing a judgment of the Justice’s Court of the town of Stanford in favor of the plaintiff.
    
      W. Farrington, for the appellant.
    
      Elijah T. Russell, for the respondent.
   Hirschberg, P. J.:

The action is in replevin to recover possession of one inserted tooth circular buzz saw, Disston make.’’ The verdict of the jury was in the plaintiff’s favor, but the judgment entered on it has been reversed by the County Court on the sole ground that the verdict is against, the weight of evidence. While we are naturally reluctant in interfering with the exercise of discretion in the granting of a. new trial, we realize that such discretion to be effective - must be-exercised lawfully, and we think that in this case to be justified it should appear to be based upon the clearest and most solid foundation. The learned county judge states in his opinion that “ this-action, or an action upon the same facts-has been tried in the Justice’s Court with a jury five times, and only upon the last trial was ' an agreement secured.” ’ The statement in the record shows that, when the case was finally ” tried the value of the saw was found by the jury to be the sum of thirty dollars. Where a controversy involving a small amount has been tried by jury many times without an agreement, it seems plain that the evidence must be close as ■ well -as conflicting, and a final determination which is free from any claim or suspicion of bias or prejudice should not be lightly disturbed.

It is not sufficient for the purpose of a reversal on the ground, that the result is against the weight of evidence that an appellate court has reached a different conclusion upon the facts from that arrived at by the jury where the evidence is amply sufficient to support the verdict. In order to justify a reversal of . the verdict it should appear that the verdict is against the weight of evidence in the sense that the fair preponderance of proof is really on the side _ of the defeated litigant. It was early held by the Court of Appeals in Burnham v. Butler (31 N. Y. 480) that adjudgment of a justice of the peace should not be reversed by the County Court unless it. clearly appear that the judgment of the justice could not home been justified by the evidence, and that so long as there has been legal evidence on both sides of the question adjudicated upon the County Court should not reverse the judgment, even if it arrive at a conclusion as to the facts different from that adjudged by the justice. The court stated the rule as follows (p.. 481): “ That where, on a trial in a justice’s court, there is evidence on both sides, and even where’ there %s only slight evidence in support of the cause of action on which there is a recovery, the county court is- not authorized to reverse the- judgment,' although such court may arrive at a conclusion upon the facts of the case, or- the weight of evidence, different from that drawn by the- justice.”

The jurisdiction of the County Court to review the decision upon the facts and to determine the weight of the evidence was conferred by the amendment of section 3063 of the Code of Civil Procedure effected by chapter 553 of the Laws of 1900. Prior to that amendment the power to reverse the judgment as against the weight of evidence where the evidence was conflicting did not exist at all. (Halsey v. Hart, 85 Hun, 46; Ludlum v. Couch, 10 App. Div. 603; City of Brooklyn v. B. C. & N. R. R. Co., 11 id. 168 ; Norton v. Arvernam Co., 14 id. 581, 584; Clark v. Daniels, 29 id. 600.) While the amendment referred to undoubtedly did confer the power, it was held by the Appellate- Division in the third department, in Murtagh v. Dempsey (85 App. Div. 204), that the authority so conferred should be exercised only when the justice’s judgment is so plainly against the weight and preponderance of proof that it can be seen that the justice could not reasonably have arrived at the decision which he made. And this court, in the very recent decision of Von Der Born v. Schultz (104 App. Div. 94), held that where the evidence, given in an action tried before a jury is so evenly balanced that reasonable men might differ as to the inferences to be drawn therefrom, and such evidence is fairly submitted to the jury, the trial court should not, in the exercise of its discretion, set aside the verdict as against the weight of evidence. The rule, of course, is to be applied only with a due regard to the demands of justice in each case, and on giving full allowance to the interest and partisanship of witnesses and the qualifying effects of the /ever-varying conditions of time, place and circumstance.

In this case the evidence was at least as strong and -convincing in behalf -of the plaintiff as of the contesting defendant. The suit was brought against William Russell, but the respondent, Leonard C. Frear, intervened as a -defendant, and the issue was as to his -alleged -ownership of the saw. Tire plaintiff purchased a farm and implements, including a circular saw, from Sherman N. Haight, on which farm there was a sawmill, occupied and used at the time of the purchase, and for many previous years, by Frear, and the saw was apparently taken by him and used at other places until this action was brought. The plaintiff proved by Haight that he had purchased the saw in October, 1891, from Swift Brothers, of Mill-brook, Dutchess county, for fifty-dollars, and a number of witnesses testified to seeing it in Frear’s possession at different times prior to 1893. Frear purchased a saw for thirty-five dollars from Swift Brothers in March, 1893, but there was some evidence tending to show that it was a solid-tooth saw, and that it was the one which isconcededly still in his possession and use. It was undisputed that a solid-tooth saw was worth only one-half of the value of an insertedtóoth saw, and that Swift Brothers had only one inserted-tooth saw of the make and size of the one in question, and that they sold a saw to Haight in 1891 and another to Frear in 1893. Haight testified that Frear told him in-1893 that he had bought his solid-tooth saw from Swift Brothers for thirty-five dollars, and this statement Frear did not specifically deny. Haight further testified that he loaned the saw in question to Frear, but this Frear denied. There does not appear to have been any other saw upon the farm at the time of the plaintiff’s purchase, and the fifty-dollar saw which Haight bought is accordingly unaccounted for, unless it is the saw which is the subject pf the action. Two witnesses testified that Frear , showed them the saw in 1891 or 1892, explained how the teeth could be taken out, and stated that it had cost-fifty dollars. This evidence was not contradicted or the conversation denied by Frear. The strongest evidence in Frear’s behalf was a bill purporting to come from Swift Brothers in which the saw sold to Frear in 1893 is described as a “ 48-inch Disston Saw,” but no mention is made of inserted teeth, and the description, does not accord with the books of the firm in which the sale is simply recorded as that of “l-saw.”

It may be said that a verdict either way would be sufficiently supported by the evidence. We think the preponderance is with the plaintiff, but. certainly there is not such a strong preponderance either way as to warrant a reversal as against the weight of evidence under the rule announced and followed in the authorities herein cited.

The judgment of the County Court should be reversed, with costs, and the judgment of the Justice’s Court affirmed.

Bartlett, Rich and Miller, JJ., concurred.

Judgment of the County Court of Dutchess county reversed, with costs, and judgment of the Justice’s Court affirmed.  