
    Jacob Krakower, Respondent, v. Wole Davis and Betsie Wolf, Defendants, Impleaded with Abraham M. Levy, Appellant.
    (Supreme Court, Appellate Term,
    May, 1897.)
    1. District court — Verdict against weight of evidence.
    A justice of a district court has power to set aside a verdict ai against the weight of evidence.
    2. Same — KTotice of motion.
    The statutory requirement of not less than five days’ notice of motion to set aside a verdict may be waived, and is so waived by failure to object , on the ground of insufficiency of notice when the motion is made.
    8. Verdict — Inadequacy.
    In an action against several defendants for broker’s commissions on the salé of real estate where the defense is a denial, but the testimony of one of the defendants tended to show a special agreement with him by which he was to pay only one-eighth of the commission, a verdict against all, the defendants for one-eighth of the commission claimed is against the weight of evidence.
    Appeal from order made -by the justice of the Second Judicial District Court, granting a new trial upon return of a verdict, in favor of the plaintiff, upon the ground that such verdict was against the weight of evidence. (
    Louis Manheim, for appellant.
    Lippmann & Ruck, for respondent.
   Bischoff, J.

The plaintiff’s claim was for commissions .earned in a transaction involving the sale of certain real estate, owned by the defendants as tenants in common, and the trial resulted in a verdict in his favor “ for one-eighth of the commission claimed.”

This verdict was set aside, at the time of its rendition, and a new trial was ordered, from which order the defendant Levy, the sole litigating defendant, appeals.

By virtue of the provisions of chapter 748 of the Laws of 1896, the justice had power to set aside the verdict upon any of the grounds specified in section 999 of the Code of Civil Procedure, and thus his jurisdiction extended to the granting of a new trial because the verdict rendered was against the weight of the evidence, since this ground is included in the-term “contrary to the evidence.” § 999, Code Civ. Pro.; McGowan v. Jenner, 24 Week. Dig. 80; Ferguson v. Gill, 74 Hun, 566.

The first objection which the appellant raises to the validity of the order is based upon the fact that no notice of the motion was given, the order having been made directly upon the rendition of the verdict.

■The statute provides (Laws 1896, chap. 748): “Hotice of such motion of not less than five days nor more than eight days shall be given to the adverse party or his attorney, within five days after the rendition of the verdict, or the entry of the judgment,” and it is contended that the justice was without power to make the order in question because such notice had not been given.

This statutory requirement of notice was for the adverse party’s benefit only, and so could be waived by him (Re Cooper, 93 N. Y. 507), and his consent to the court’s entertaining the motion at the time when it was made, in his presence, was to be inferred from his failure to object upon, the ground that insufficient notice had been given (Mayor, etc. v. Lyons, 24 How. Pr. 280), if, indeed, the statute is to be construed as calling for such notice where the motion is made upon the return of the verdict.

Hext the appellant claims that the motion, if properly entertained, was erroneously granted, and the merits of the case are thus presented so far as to call for our inquiry whether the justice’s ruling that the verdict should be set aside was in abuse of the discretion which he was empowered to exercise. Grening v. Malcom, 83 Hun, 9; Ferguson v. Gill, supra.

When called upon to determine whether the granting of a new trial" was or was not proper, the appellate .court should give duel consideration to the fact that the justice had peculiar facilities for. determining as to the weight to be accorded to particular testimony, since the witnesses were present before him, as well as before the jury^ when testifying, and a reversal of such an order must proceed upon the ground that there was clearly an improper exercise of the discretionary power existing for the purposes of the matter. 16 Am. & Eng. Ency. of Law, 516, 517, 518; Grening v. Malcom, supra.

Without entering into the question . of the value of certain testimony in this case, in so far as opposed to other testimony, it is apparent to us that the verdict was against the evidence in any aspect.

The plaintiff’s claim was for $150, representing the agreed compensation for his efforts in securing a purchase of the defendants’ property, and the evidence shows that this was the amount agreed upon. , ■

By his answer the appellant generally denied all the essential 'allegations of the complaint, but at the trial his evidence tended to show an agreement with the plaintiff whereby he was to pay but one-eighth of the commission, this being commensurate with his. interest in the property. •

The issue in the case, however, was with regard to the right of the plaintiff to recover against all the defendants for the' amount of his claim, and while the appellant might have resisted the imposition of liability as against himself jointly with his codefendants, because of the alleged special agreement, whereby his obligation was made several and distinct, no such defense was interposed by him and lire case was submitted to the jury for their determination as to the extent of the plaintiff’s demand against all three defendants, if he were entitled to a recovery at all.

The proof in the case may have been sufficient to support a finding in favor of the defendants, but no basis was furnished for the verdict rendered “ for one-eighth of the commission claimed,” since ibe plaintiff’s recovery could only have been for the full commis-' sion, if based upon the evidence.

Issue was joined upon the plaintiff’s claim, as alleged, and the proof justified a recovery by the plaintiff for the amount of commissions agreed upon with him by the defendants.

If the appellant was indebted for but a small fraction of this amount, by special agreement, he was not a proper party defendant to this action, but this was not the position taken and the verdict rendered, as against all the defendants, was inadequate.

Order affirmed, with costs.

Daly, P. J., and .MoAdam, J.-, concur.

Order affirmed, with costs.  