
    (83 Hun, 9.)
    GRENING v. MALCOM.
    (Supreme Court, General Term, First Department.
    December 14, 1894.)
    1. Appeal—Case—Recital as to Evidence.
    A recital in a case on appeal that.it contains all the “testimony” taken on the trial is not equivalent to a statement that it contains all the “evidence.”
    2. Same—Discretion op Trial Court—Granting New Trial.
    It is within the discretion of the trial court to set aside a verdict as against the evidence.
    Appeal from circuit court, New York county.
    Action by Paul G. Grening against George Malcom to recover the value of services alleged to have been rendered by plaintiff to defendant. From an order granting a motion made on the minutes to set aside a verdict for $7,000 in favor of plaintiff, and for a new trial on the ground that the damages were excessive, and that the verdict was contrary to the evidence and contrary to the law, plaintiff appeals.
    Affirmed.
    Argued before VAN BRUNT, P. J., and O’BRIEN, J.
    
      Richard T. Greene, for appellant.
    Edward D. Bettens, for respondent.
   O’BRIEN, J.

The action was brought to recover $9,919.50, the value of plaintiff’s services rendered as a broker in obtaining for the defendant the sum of $150,000, which services consisted in promoting, organizing, and perfecting a brewery company, and in negotiating and selling certain of its securities. The performance of some service was admitted, the value alone being placed in dispute, and upon this issue as to the value of such services the question was submitted to the jury. The jury found in plaintiff’s favor for $7,000, which was then and there set aside, and a new trial ordered. It is from this order that the plaintiff has appealed, insisting that, as there was no exception taken to the submission of the question, or motion made either to dismiss the complaint or for the direction of a verdict, the court could not set aside the verdict as contrary to law, if there was any evidence to sustain it. Upon the rule of law thus invoked the appellant confidently appeals to the evidence as furnishing sufficient basis for the amount of the verdict. In this connection, however, it is to be noticed that the case on appeal has no statement that it contains all the evidence, but only a statement that it “contains all the testimony taken on the trial of this action.” This is insufficient, it having been held that such a statement “is not equivalent to the statement that the case contains all the evidence, and, in the absence of the latter statement, the general term is precluded from reviewing questions of fact. Randall v. Railroad Co., 76 Hun, 427, 27 N. Y. Supp. 1062. To avoid this question being presented to us again, and assuming that all the evidence most favorable to the plaintiff is contained in the case, we have examined it with a view of determining whether the appellant’s position is correct in holding that it was reversible error in the trial court to set aside the verdict. The testimony offered by plaintiff as to the character of his services, and the value placed thereon by himself and his experts, was neither satisfactory nor conclusive; and, offset as it was by the two experts produced by the defendant, and the fact that upon a submission of this question of value to an umpire he fixed the amount at $1,500, it cannot be claimed that the judge erred in regarding the verdict awarded as excessive. As said in Horan v. Railroad Co., 9 Misc. Rep. 68, 29 N. Y. Supp. 12:

“The thing that ascertains the value of testimony is mainly the manner of its delivery, the apparent candor and sincerity of the witness, or his manifest simulation and dissimulation. Of this decisive test of truth the tidal court has the full advantage, while we are without it. Hence the rule that on appeals from orders giving or refusing new trials upon a claim that the verdict is against the evidence and the justice of the case the decision of the trial judge is of the weightiest influence. Aldridge v. Aldridge, 120 N. Y. 614,” 24 N. E. 1022.

In addition to this case from which we have quoted, which is authority for the proposition that an order of the trial judge setting aside a verdict as against the evidence will be reversed only for abuse of discretion to the prejudice of justice, we have another authority in the case of Young v. Stone, 77 Hun, 395, 28 N. Y. Supp. 881, wherein the cases are collated and discussed," and from which it will be found that the language employed in nearly all the cases relating to this subject is somewhat similar, in holding that the granting or refusing of a new trial on the minutes is largely a matter resting in the discretion of the judge who presides at the trial. Thus in Barrett v. Railroad Co., 45 N. Y. 632, it is said:

“Motions to set aside verdicts as contrary to evidence, as well as motions for a new trial upon the ground of newly-discovered evidence, are not governed by any well-defined rules, but depend in a great degree upon the peculiar circumstances of each case. They are addressed to the sound discretion of the court, and whether they should be granted or refused involves the inquiry whether substantial justice has been done, the court having in view solely the attainment of that end.”

Having regard to the discretion vested in the trial judge, and the testimony offered to support the verdict set aside, we do not think that there is any ground upon which to assert that such discretion has been abused. The order accordingly should be affirmed, with $10 costs and disbursements.

VAN BRUNT, P. J., concurs in result.  