
    (80 Hun, 183.)
    SCHMIDT v. BROWN et al.
    (Supreme Court, General Term, Third Department.
    July 14, 1894.)
    1. New Triad—When Judge may Act on His Own Motion.
    Under Code Civ. Proc. § 999, providing that a trial judge may in his discretion entertain a motion to set aside a verdict on the minutes, he may set aside a verdict on his own motion.
    2. Same—Verdict against Weight of Evidence.
    A verdict may be set aside as against the weight of evidence where it is apparent that the jury either misapprehended the same, or were influenced by passion or prejudice in rendering their verdict.
    Appeal from circuit court, Greene county.
    
      Action by August Schmidt against John Brown and Nathaniel F. Tiel for an alleged breach of a building contract. From an order made by the trial justice, of his own motion, on the minutes, setting aside a verdict in favor of defendant, and ordering a new trial upon the minutes, on the ground that the verdict was against the weight of evidence, defendants appeal. Affirmed.
    Argued before MAYBAM, P. J., and PUTNAM and HEBBICK, JJ.
    Frank H. Osborn, for appellants.
    D. H. Daley, for respondent.
   MAYHAM, P. J.

This action was prosecuted by the plaintiff to recover damages of the defendants for an alleged breach of contract by the defendants, in the furnishing of materials and the construction of a dwelling house, the plaintiff claiming in his complaint to recover $1,000. The answer alleged a substantiál performance of the contract, except in some slight particulars, the completion of which could be made at an expense of a small sum, and also alleged that the time of the completion fixed in the contract was enlarged by agreement between the parties. The answer also set up a counterclaim for items advanced and delivered to the plaintiff by the defendants. The reply denied the counterclaim. The jury found for the defendants, and the trial judge set aside the verdict, and granted a new trial, on the minutes.

We have examined the evidence, and think the learned trial judge violated no rule of law in setting aside the verdict. By section 999 of the Code of Civil Procedure, the justice presiding at a trial by a jury may, in his discretion, entertain a motion to set aside a verdict upon the minutes. In this case the justice exercised the discretion without an actual motion, but in the presence of the attorneys for the parties. There seems to be nothing to prevent a justice from making the order on his own motion, and the fact that the order was made on the motion of the justice does not seem to be a ground for the reversal of his order. There was some evidence in the case tending to establish a failure on the part of the defendants to complete this job according to the contract, which does not seem to be expressly disputed by the evidence of the defendants upon the trial. While, upon many points in controversy, there is a conflict of evidence, on which, if standing alone in the case, the judge would not be at liberty to interfere with the verdict of the jury (Morss v. Sherrill, 63 Barb. 21), yet there seems to be some undisputed testimony upon which the plaintiff would seem to be entitled to recover. When there is sufficient legal evidence in a case to sustain the determination of the trial judge in setting aside the verdict of a jury, and the question turns upon the apparent weight of evidence, the trial judge, having seen and heard the witnesses, is better qualified to determine where the truth lies than the court on appeal is, from the printed record only. The rule seems originally to be that the trial court could not set aside a verdict where there was a scintilla of evidence to sustain it. But that rule has been modified by the recent decisions so that in any case where, from the undisputed evidence, the court may properly direct a verdict for the plaintiff, or where there is such an entire failure of evidence on his part that the court may nonsuit the plaintiff, it may set aside a verdict where he is not entitled to it, tested by the above rule. In other words, where the verdict is against the evidence, or so manifestly against the weight of evidence that it is apparent that the jury either misapprehended the same, or were influenced by passion or prejudice in rendering their verdict, the court on the trial may set it aside. In Baulec v. Railroad Co., 59 N. Y. 366, Allen, J., says:

“It is not enough to authorize the submission of a question, as one of fact, to the jury, that there is ‘some evidence.’ A scintilla of evidence, or a mere surmise that there may have been negligence on the part of the defendant, would not justify the judge in leaving the case to the jury.”

In Dwight v. Insurance Co., 103 N. Y. 359, 8 N. E. 654, Ruger, C. J., quotes with approbation, and adopts, the rule laid down by the supreme court of the United States in Improvement Co. v. Munson, 14 Wall. 442, as follows:

“Nor are judges any longer required to submit a question to a jury merely because some evidence has been introduced by a party having the burden of proof, unless the evidence be of such a character that it would warrant the jury in finding a verdict for that party. Formerly, it was held that, if there was what was called a ‘scintilla of evidence’ in support of the case, the judge was bound to leave it to the jury; but recent decisions of high authority have established a more reasonable rule,—that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus rests.”

The learned chief judge also cites, to the same effect, Pleasants v. Fant, 22 Wall. 120; Commissioners v. Clark, 94 U. S. 284; Griggs v. Houston, 104 U. S. 553; and other cases.

We think, within the rule as above stated, the learned trial judge properly exercised the discretion vested in him by section 999 of the Code of Civil Procedure, in entertaining a motion on the minutes for a new trial, and that there was no error committed by him in his disposition of the same.

The costs were not awarded by the judge on setting aside the verdict and granting a new trial, and no question was raised by the counsel for either party upon that subject. We do not see how error can be predicated on that question here. The order must be affirmed, with *10 costs and printing disbursements. All concur.  