
    Elizabeth Langlois, App’lt, v. Frederick F. Hayward, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 18, 1891.)
    
    New trial.
    The granting of a new trial upon the minutes rests in the sound discretion of the trial judge, and where plaintiff's case was supported only hy her own evidence and was opposed hy that of the defendant and of two disinterested witnesses and the judge granted a new trial, the general term will not interfere.
    Appeal from an order setting aside the verdict of the jury, and ■granting a new trial, upon a motion made by the defendant at the circuit upon the minutes of the court.
    This action was for an assault and battery, on the trial of which the jury rendered a verdict for the plaintiff for $35.00.
    The only evidence in support of the verdict bearing upon the question of the assault was the testimony of the plaintiff.
    She is positively contradicted by the defendant, and his testimony is in part contradicted by two witnesses, who were present .at the time of the alleged assault and battery.
    
      Shedden & Booth {J. F. Shedden, of counsel), for app’lt; Riley & Donway {T. F. Conway, of counsel), for resp’t.
   Mayham, J.

The granting of a new trial upon the court rests in the sound discretion of the trial judge, and his determination should not be interfered with on appeal unless it is apparent that that discretion was abused or improperly exercised. Barrett v. Third Ave. R. R. Co., 45 N. Y., 628.

We do not think that there was an abuse of that discretion in this case. The verdict rested solely upon the testimony of the plaintiff, wholly uncorroborated as to the assault.

It is true that the doctor called by her as a witness, says that the discoloration upon her arm might have been produced by the violent grasp of the hand, but he also says that it might have been produced in some other way, so that his evidence scarcely amounts to a corroboration of the plaintiff’s upon that subject.

The verdict being founed upon the uncorroborated testimony of the plaintiff, the court might set aside and order a new trial, although her testimony when taken by itself might be sufficient if contradicted to prove her case. Meddaugh v. Bigelow, 67 Barb., 106. And this is especially true when the motion is made before, and granted by the judge before' whom the action was tried, who had the opportunity of observing the demeanor of the witnesses, and judging of the amount of credence to which they were entitled.

In Meddaugh v. Bigelow, supra, the court says: “ The judge who tried the cause and heard the witnesses testify was better qualified to determine whether the jury was misled than any other tribunal, and as he exercised discretion * * * this court should not interfere.”

It is true that the verdict of a jury upon a disputed question of fact should not be set aside when the evidence clearly supports the verdict, although from the evidence the court might have reached a different conclusion from that • found by the jury. Beckwith v. N. Y. C. R. R. Co., 64 Barb., 299.

But when the verdict is so decidedly against the weight of evidence that it is clear that the verdict is the result of sympathy, passion or prejudice, the verdict will be set aside for that reason; and when the Verdict is supported only by the testimony of an interested party, who is contradicted by the advérse party and two disinterested witnesses, upon the material facts in dispute, and the trial judge, upon that proof, in the exercise of the discretion vested in him, sets aside the verdict as against the weight of evidence, in such a case we think this court on appeal ought not to reverse the order.

The order is affirmed, with costs.

Learned, P. J., and Landon, J., concur.  