
    Mortimer Mansfield, Resp't, v. Wilhelmina Raab et al., Ex'rs, App'lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 12, 1892.)
    
    Verdict—Appeal.
    Where the evidence is conflicting and contradictory, and no exceptions were taken to the charge, the verdict will not be disturbed on appeal.
    Appeal from judgment in favor of plaintiff, and from order denying motion for a new trial.
    
      L. Laflin Kellogg, for app’lts;
    
      Charles Be Kay Townsend, for resp’t.
   Dykman, J.

The plaintiff in this action made an agreement in writing with Barbara Raab by which he undertook to erect a two story and attic frame building at Bayville, Long Island, and a barn and bath-house, according to certain drawings and specifications.

The agreement was made on the 28th day of July, 1887, and the plaintiff commenced the execution of the contract in two or three weeks thereafter, and continued- his work upon the buildings until about the middle of February, 1888, when he left.

This action was commenced for the recovery of damages, based upon the claim of the plaintiff that he was wrongfully discharged by the defendant without cause,' and sustained damage thereby.

The cause was tried at the circuit, and a verdict rendered by the jury in favor of the plaintiff for $6,490, and the defendant has appealed from the judgment, and from an order denying a motion for a new trial upon the minutes of the court.

The testimony on the trial was conflicting and contradictory, and in many material respects irreconcilable. The evidence of the plaintiff and his witnesses proved many breaches and violations of the agreement on the part of the defendant, and improper interference with the progress of the work on the part of her brother.

But their evidence was sharply contradicted by the witnesses on the part of the defendant, and a case was thus made for the determination of a jury.

The case was submitted to the jury by a charge to which there were no exceptions, and which fully explained the questions for their determination, and the verdict was given for the plaintiff as we have seen.

Under such circumstances an appellate tribunal possesses but little power. If the testimony on the part of the plaintiff commanded the belief of the jury, as it must have done to produce such a verdict, then it was amply sufficient. It must be assumed also that the jury failed to believe the testimony on the part of the defendant, for that was sufficient to defeat a recovery.

Such being the situation, we cannot interfere with the verdict, and as we discover no error of law in the record, the judgment and order denying the motion for a new trial should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.  