
    ROWE against STEVENS.
    
      New York Superior Court;
    
    
      General Term, April, 1872.
    Verdict Against Evidence.—New Trial.
    If defendant omits, at the trial, to ask a dismissal of the complaint, expressly on the ground that the evidence is insufficient to justify a verdict, or to ask a direction that a verdict be given in his favor, he cannot, after verdict against him, sustain a motion on the judge’s minutes for a new trial, on the mere ground that the evidence was insufficient, unless the verdict was clearly contrary to evidence.
    
      Where there is a real conflict of testimony among the witnesses,,and there is sufficient evidence upon which the jury may find for the plaintiff, their verdict will not be set aside, even though the court, on the same testimony, would have decided differently.
    Appeal from an order granting a new trial.
    James Rowe sued Salmon S. Stevens, in the New York superior court, to recover the usual broker’s commission for services rendered by plaintiff to defendant, in finding a purchaser for fifteen lots of land owned by defendant.
    The defendant denied such employment, and the rendition of services for defendant, at defendant’s request, and claimed that plaintiff was employed by other persons than the defendant,—namely, by Winters and Hunt,—to bring about an exchange of some of their property for said lots; that he did effect such exchange, but that his services in that respect were rendered to said Winters & Hunt, who paid the plaintiff the usual broker’s commission and fees therefor.
    Hpon a trial before the court and a jury, evidence was introduced by both parties, and at the close of such evidence, defendant’s counsel moved to dismiss the complaint, on the ground that a broker cannot take a commission from both parties.
    The motion was denied, and defendant excepted.
    The judge charged as stated in the opinion, and plaintiff had a verdict for nine hundred and fifty dollars.
    Defendant moved to set aside the verdict as contrary to evidence. The motion was granted and the verdict set aside and a new trial ordered, with costs to abide the the event.
    Plaintiff" appealed to the court at general term.
    
      Chauncy Shafer and C. H. Truax, for plaintiff, appellant.
    I. The plaintiff was entitled to recover (Pugsley v. Murray, 4 E. D. Smith, 245; Dunlop v. Richards, 2 Id., 181).
    II. The party non-suited, or against whom a verdict is ordered, is upon appeal entitled to have every doubtful fact found in his favor (Colegrove v. N. Y. & N. H. R. R. Co., 20 N. Y., 492; Hart v. Erie Railway Co., 3 Albany Law J., 312).
    III. The charge to the jury was not excepl ed to, and was very explicit in its statements of the law. The jury was instructed, that before they could find for the plaintiff, they must find that plaintiff informed both parties to the transaction, that the other party was to pay him a commission, and as there was no evidence on that point, the supposition is they did so find, and the finding of a jury on a question of fact is conclusive (1 Grah. & W. on New Trials, 362; 2 Arch. Pr., 222; Gra. Pr., 314; see, also, 1 Grah. & W. on Neu Trials, 380).
    IY. A verdict should not be set aside, merely because the court would have come to a different conclusion from that of the jury, on the force and weight of the testimony (Mackey v. N. Y. Central R. R. Co., 37 Barb., 528; 3 Grah. & W. on New Trials, 1239, 1321). And the verdict should be sustained by the court, if the evidence by any fair construction, will warrant such a finding (3 Grah. & W., 1239; Conklin v. Thompson, 29 Barb., 218; Heritage v. Hall, 33 Id., 347; Best v. Starks, 24 How. Pr., 58; Sheldon v. Hudson River R. R. Co., 29 Barb., 226; Fry v. Bennett, 9 Abb. Pr., 45; 27 Barb., 540; 29 Id., 491, 504: Heritage v. Hall, 33 Barb., 347; Coddington v. Carnley, 2 Hilt., 528).
    
      Ira D. Warren, for defendant, respondent.
   By the Court. — Freedman, J.

The learned judge presiding at the trial charged the jury in effect that, although as a general rule a broker cannot act for both parties, and collect a fee from each, yet there may be circumstances under which he may rightfully be employed by both parties to do a joint service upon the agreement to be paid equally by them, but that this must be fully understood.

He left it to the jury to find whether the case, according to the evidence, did or did not come within the exception referred to, and charged them that, before they could render a verdict for the plaintiff, they had to find from the evidence, as a fact, not only that defendant employed plaintiff, but also that it was understood by all parties interested,—Hunt and Winters on the one side and the defendant on the other,—that plaintiff was to act as a broker for both sides, and to. be paid accordingly.

The defendant, who had previously and unsuccessfully moved for a dismissal of the complaint on the sole and specific ground that a broker cannot take a commission from both parties, did not request the court to charge otherwise, and took no exception to the charge as made. Consequently he acquiesced in it, and the charge, as delivered, must be assumed to embody the true rule of law applicable to defendant’s case, upon the present appeal by plaintiff.

The only question, then, before us is, whether the court below erred in setting aside the verdict. The motion was made on the judge’s minutes. Section 264 of the Code prescribes three distinct grounds upon which the judge who tries the case may entertain such motion, namely:

1. Upon>excepfcions; ■
2. For insufficient evidence ; and,
3. For excessive damages.

The defendant moved upon the sole ground that the verdict was contrary to evidence, and unless it was clearly so the motion should have been denied.

Upon an examination of the proceedings had upon the trial, we find that when plaintiff rested, no motion was made by defendant for a dismissal'of the complaint for the reason that plaintiff had failed to prove a cause of action, and that at the close of the evidence on both sides the defendant again omitted to move for such dismissal or the direction of a verdict in his favor, upon the ground of the insufficiency of evidence to sustain a verdict against him. The defendant, therefore, by not objecting to submit the case to the jury upon the questions of fact involved therein, concluded that there was sufficient evidence to carry the case to the jury, and he consented to a decision of these questions by that tribunal.

Having taken his chance of a favorable verdict, which would have concluded the plaintiff upon the facts, and there being a clear conflict of testimony between the parties, who had appeared as witnesses on their own behalf, the'defendant should not afterwards have been permitted to allege that the verdict is without evidence, or insufficiently supported by evidence, and, for that reason, against law (Barrett v. Third-avenue R. R. Co., 45 N. Y., 628).

Moreover, it appears that there really was sufficient evidence to authorize the jury to find as they did ; and the case, therefore, belonged to a class of cases in which the rule is that the court will not set aside the verdict merely because the court is of the opinion that it would have come to a contrary conclusion upon the same evidence.

The policy of the law is not only to do justice between the parties, but also to end the legal strife after each of them has had a reasonable opportunity for the full presentation of his side of the case.

The law, therefore, prescribes certain forms according to which justice is uniformly administered, and very wisely holds that during the progress of an action, certain benefits can be claimed, and secured, only in a certain form and at a particular stage of the proceeding, and are waived unless so applied for.

In many instances a party has his free choice, which, however, when made, will bind him to abide by it with all its consequences. By electing one mode for the assertion and investigation of his rights, he is deemed to have waived the others, which are inconsistent therewith. If the practice were otherwise, litigation would be undeterminable. According to these fundamental principles, there is neither injustice nor hardship in holding a defendant who has, either carelessly or designedly, seen fit to omit making his motion, concluded upon the facts established by the verdict of the jury.

The order appealed from should be reversed, with costs.

Barbour, Oh. J., and Sedgwick, J., concurred. 
      
       Present, Barbour, Ch. J., Freedman and Sedgwick, JJ.
     