
    The H. B. Smith Company, Resp’t, v. Charles P. Chapin App’lt.
    
      (City Court of New York, General Term,
    
    
      Filed March 10, 1891.)
    
    New trial—Verdict contrary to instructions.
    In an action upon a contract the defendant alleged that it was made by reason of false representations, and that a sum claimed to have been paid thereon was not a payment, but a loan to plaintiff. The court charged that if the jury found the misrepresentations were made they should find a verdict for defendant for the amount of the loan; but if not, they should find for plaintiff. The jury returned a verdict for defendant. Held, that in view of the instructions and the verdict rendered the trial court properly ordered a new trial on the minutes.
    This action was brought to recover the contract price, and for -extra work, for erecting in the house of the defendant “ a steam and hot water heating apparatus.” The contract was in writing, and the amount to be paid under said contract was the sum of .$870. The sum of $35.80 was claimed for extra work ordered ■by the defendant
    The plaintiff alleges that -$500 had been paid on account, and •claims the balance due of $405.80, besides interest
    The defendant admits the making of the contract, but alleges that certain representations and statements were made to defendant relating to the merits and ability of said apparatus to do the heating of defendant’s house, which statements and representations were false, and alleges that the sum of $500, referred to as having -been paid on account of the contract, was not a payment, but was •a loan and an advance made to plaintiff by defendant
    The action came on for trial on December 13, 1889, and after the charge of the trial justice, which was to the effect that if the jury found that the misrepresentations alleged were made, plaintiff could not recover, and they should find a verdict for defendant for the amount of such loan; but if no misrepresentations were made, they should find a verdict for plaintiff for the amount claimed, the matter was submitted to the jury upon all the evidence taken, who returned a verdict in favor of the defendant The plaintiff moved for a new trial on the minutes, and the trial justice granted the motion; and on the 11th day of February, 1890, an order was entered setting aside the verdict and granting a new trial. From this order defendant appeals.
    
      Smith, Bowman & Close, for resp’t; Remson & Parsons, for app’lt.
   McGown, J.

We have carefully examined the case on appeal, also the exceptions therein, and considering the instructions given by the trial justice in his charge to the jury, and also the verdict rendered herein, we think that the action taken by the trial justice in granting the order appealed from was a correct and proper one under the circumstances as disclosed upon the trial, and that the trial justice exercised a proper discretion in granting such order, and that the rights of each of the parties to the action would be best served by a new trial herein, in accordance with said order.

The order appealed from will, therefore, be affirmed, with costs-to the appellant

Ehrlich, Ch. J., and Yah Wyck, J., concur.  