
    James V. Lawrence, Sole Surviving Member of the Firm of Lawrence Brothers, Respondent, v. William C. G. Wilson, Appellant.
    
      Verdict—when the Appellate Division should set it aside—the fact that it is a second verdict does not affect the question.
    
    While it is a general rule that appellate courts will not set aside a verdict upon conflicting evidence, or reverse a judgment entered thereon merely because the verdict seems to be against the weight of evidence, it is also the rule that it is a duty of appellate courts, which they should not hesitate to perform, to set aside a verdict as against the weight of evidence, where the ends of justice appear to require a new trial.
    The fact that the verdict in question is the second verdict recovered by the same party should not operate to prevent the discharge of this duty.
    Appeal by the defendant, William O. Q-. Wilson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of' Westchester on the 2d day of May, 1904, upon the verdict of a jury for $1,134, and also from an order entered in said clerk’s office on the 'Tth day of May, 1904, denying the defendant’s motion for a new trial made upon the minutes. ■
    
      Eugene Frayer, for the appellant.
    
      Hector M. Hitchings, for the respondent.
   Rich, J.:

This action was brought to recover damages for the alleged taking and conversion of personal property, of the value of $1,000, owned by the plaintiff. It has been tried three times. On the first trial the complaint was dismissed by the trial justice, and judgment entered accordingly, which was reversed on appeal by this court on the ground that questions of fact were involved which should have been submitted to the jury. (Lawrence v. Wilson, 64 App. Div. 562.) Upon the second trial' the plaintiff recovered a verdict for $400, which the trial court set aside as excessive unless the'plaintiff stipulated to reduce the recovery to $75. Upon the last trial the jury rendered a verdict in favor of the plaintiff for $1,134. Defendant’s motion to set the verdict aside and for an order granting a new trial on the exceptions and on the ground that the verdict was for excessive damages, contrary to law and against the weight of evidence, was denied. From the judgment entered and from the order denying such motion this appeal is taken.

The contention of the plaintiff was that on January 9, 1900, one Richard JB. Riker, being on that day the owner and entitled to the possession of certain lumber and other materials, sold and assigned “ all his fight, title and interest ” therein to the plaintiff, who since that date has been the owner and entitled to the possession thereof; that on February 5, 1900, the “ defendant unlawfully and wrong- . fully took and carried away the said goods and converted them to his own use.” The lumber and other materials were those used in the construction of a temporary shop or shanty (so called) by Riker’ for the use of himself and Ms workmen while 'engaged in building three houses upon the adjacent land, upon which the defendant had a mortgage in process of foreclosure, and stored therein by Riker when he abandoned work upon said buildings at some time prior to November 15, 1899. The alleged wrongful and unlawful taking consisted in tearing down the shanty and taking away the lumber, of which it had been constructed, together with the materials stored therein by the defendant. There is no contradiction of the facts, first, that Riker was the owner of the lumber' of which the shanty was constructed, and of the materials stored in it, at the time he abandoned work upon the three houses'in the fall of 1899 ; second, that the defendant directed an employee to tear down the shanty and use the boards of which it was constructed in covering the openings for the doors and windows of the unfinished houses, and that the materials in it were removed to the unfinished corner house of the defendant; third, that afterward Hiker took this material into Ins possession and delivered it to Hall, to be applied upon an indebtedness to him, and it was subsequently sold to the defendant by Hall for use on the unfinished buildings, for which it had been originally prepared; fourth, that on January 9, 1900, Hiker executed and delivered to the plaintiff a bill of sale of all the materials that he claimed had been used in the construction of the shanty and stored therein, stating its value to be $1,000, and on the same day addressed a letter to the plaintiff inclosing an inventory of such materials, all of which materials, he wrote, 1 have this day assigned to you, and hereby request that you will collect the value thereof from whatever party or parties have taken and converted, the same. The said shop has been torn down and used in the inclosure of the three houses in question, without my authority or consent, and the material which was stored in said shop 'has also been removed therefrom and either placed or used in said three buildings, likewise without my knowledge or consent; ” fifth, that a written demand for the materials claimed by plaintiff to have passed to him under said bill of sale was served on defendant on or about February 5, 1900, with which he has not complied.

A careful consideration of the evidence leads me to the conclusion that it is established by a preponderance of the evidence that prior to the execution and delivery of the bill of sale on January 9, 1900, by Biker to the plaintiff, Biker had.actually taken possession of the materials and delivered them to Hall, with the exception of the lumber used in boarding up the windows and doors of the unfinished buildings, -and on that day had no title or right of possession to the property he then assumed to sell to the plaintiff; and also that the damages recovered are largely in excess of those warranted by the evidence. The defendant is not liable in any event for more than the value of the material that had been stored in the shanty and was actually removed from it to his house by Baneker and Wales, in addition to the value of the boards of which the shanty was constructed. Biker testified that he did not measure any of the lumber, weigh any of the nails or paint, or make any list of the property stored, except from memory. He says: “ I didn’t take any particular notice; * * * I just looked at it and knew in a general way what was there.” This list was arbitrarily made from recollection alone, upon which values were placed aggregating $1,000. It is evident that this valuation is predicated on the assumption that the quantity and kinds of materials appearing on such list were actually taken from the shanty by defendant’s direction and placed in his building. Bancker, who took the property out of' the shanty and placed it in the unfinished building of the defendant, testifies that only a part of the property mentioned in the list of Lawrence was removed by the defendant. It appears that all the property taken from the shanty was. taken possession of byRiker, who delivered it to Hall, by whom it was drawn at one load to his warehouse in Brooklyn, where his receiving clerk made a written and itemized list of it. This list shows that it consisted only of the lumber testified to by Bancker as having been taken by him from the shanty, and does not include many of the items specified in the list upon which plaintiffs witnesses based their evidence of the aggregate value of the property. It is apparent that a large part of the verdict represents the value of property which, upon the most liberal view of the evidence that the plaintiff is entitled to, was never in defendant’s possession, and for which lie is not responsible or liable. I am aware of the existence of the well-established general rule, so strongly urged by counsel for the respondent, that appellate courts will not set aside a verdict rendered upon conflicting evidence or reverse a judgment entered thereon, merely because the verdict seems to be against the weight of evidence, and admit the justice of the contention that this court, not having had the benefit of a personal view of the witnesses and their appearance and manner of testifying, should give great weight to the conclusion of the jury, and have endeavored, in the consideration of the questions involved in this appeal, to keep strictly within these principles. It is an equally familiar rule that it is the duty of appellate courts and they should not hesitate to set aside a verdict as against the weight of evidence where the ends of justice appear to require a new trial. The fact that this is the second verdict recovered by the plaintiff should not prevent the discharge of this duty

I concur with the views expressed by Mr. Justice McLaughlin in McCann v. New York & Queens Co. R. Co. (73 App. Div. 305), peculiarly applicable to this appeal, that “A wrong committed, no matter how often, never makes a right. This verdict is wrong; it is the result of misconception; prejudice or partiality and ought not to be approved by the court. Upon substantially the same state of facts we have several times declared that the plaintiff ought not to recover, and yet we are about to permit a recovery, because the jury forsooth have; for the fourth time, committed the same wrong. The law imposes a. duty upon this court to review verdicts, and whenever it can be seen that injustice has been done, by reason of the jury not properly considering the evidence, or that its action has been influenced either by prejudice or partiality, "then the court ought, in the discharge of its duty, to fearlessly exercise the power given to it by the statute (Code Civ. Proc. § 1317) and right the wrong by setting the verdict aside and ordering a new trial, and this as many times as may be necessary to accomplish the proper result. Justice never tires, and an act ought not to be approved in its name which wrongfully takes property from one person and gives it to another.”

It was estimated that 3,000 feet of lumber was used in the construction of the shanty, and the highest valuation placed upon this was nineteen .dollars and fifty cents per 1,000. This lumber wás converted by the defendant, and a verdict for its value was justified by the evidence.

The judgment and order appealed from must be reversed and a new trial granted, costs to abide the event, unless within thirty days after the entry of the Order herein the respondent stipulate to reduce the verdict and judgment to the sum of fifty-eight dollars and fifty cents, with interest thereon ; in which event the judgment as modified and the order appealed from should be affirmed, without costs.

Hirschberg, P. J., Bartlett, Jerks and Miller, JJ., concurred.

Judgment, and order reversed and new trial granted, costs to abide the event, unless within thirty days the respondent stipulate-to reduce the verdict and judgment to the sum of fifty-eight dollars and fifty cents, with interest; on such stipulation, judgment and order affirmed, without costs.  