
    Rudd and another vs. Davis.
    A nonsuit may be granted at the trial of a cause on the testimony adduced by the defendant.
    In order to warrant the granting of a nonsuit under such circumstances, it is not necessary that Hie evidence given by the defendant be in its nature conclusive—c. g., a record, or something importing absolute verity : it is enough that a ver. diet for the plaintiff would be against the clear weight and effect of the evidence.
    Error to the New-York cotnmoh pleas. G. & R. L. Rudd sued Davis in the court below under the act entitled “ An act for the better security of mechanics and others erecting buildings in the city and county of New-York.” (Sess. Laws of’ 30, p. 412, and Sess. Laws of ’32, p. 181.) The action was by the plaintiffs as material men against the defendant for whom one Harold Geer had contracted in writing to erect certain houses in the city of New-York. The plaintiffs’ attested account against Geer was served on the defendant on the 16th of November, 1838. After the plaintiffs had rested, the defendant proved that the buildings were substantially finished, according to the contract, on the 13th of November, 1838, when he paid Geer all that was due. The evidence of payment at the day mentioned was full and complete. In reply, the plaintiffs attempted to show that the payment was made with intent to defraud them. The court below were of opinion that the plaintiffs had failed to show fraud in the payment, and directed a nonsuit; although the plaintiffs insisted on going to the jury. The latter excepted, and, after judgment, sued out a writ of error.
    
      C. O’Connor, for the plaintiffs in error.
    J: L. Mason, for the defendant in error.
   By the Court, Cower, J.

The evidence of payment to the contractor in full, after the buildings were substantially completed and before the attested account of the plaintiffs was served, was decisive. So, I think, was the evidence of the fairness of the payment in respect to the plaintiffs. The court below thought the whole case so clear for the defendant, that, if a verdict should be rendered against him, they would be obliged to grant a new trial. They therefore refused to submit the case to the jury, though requested to do so by the plaintiffs’ counsel. It is now hardly pretended that there was evidence on which the jury could have found for the plaintiffs with any color of propriety; but the nonsuit is thought to be erroneous, because it was granted on the evidence of the defendant. It is said that to warrant a nonsuit on his evidence, after a plaintiff has made out a prima facie case, the evidence must be conclusive in its character—a record, for instance, or something amounting to absolute verity— so as to present a mere question of law. We do not understand this to be the rule. It is enough that a verdict for the plaintiff would be against the clear weight and effect of the defensive evidence, whatever may be its character. (Davis v. Hardy, 6 Barn. & Cress. 225 ; Stuart v. Simpson, 1 Wend. 376, 379 ; Demyer v. Souzer, 6 id. 436—8 ; Wilson v. Williams, 14 id. 146 ; Fort v. Collins, 21 id. 109 ; Jansen v. Acker, 23 id. 480.)

As to the evidence in reply, it was the plaintiffs’; and failing, as we think it did, to overcome the defence, or even to raise a question of fraud for the jury, it was still more obviously proper to withdraw this from their consideration.

Judgment affirmed.  