
    H. B. Smith Co. v. Chapin.
    
      (City Court of New York, General Term.
    
    February 24, 1891.)
    New Trial—Disregarding Instructions.
    In an action for the contract price of a heating apparatus defendant alleged that plaintiff had misrepresented its merits and capabilities, and prayed for a recovery of advances made to plaintiff on the apparatus. The judge charged that, if plaintiff had made the misrepresentations alleged by defendant, defendant was entitled to recover for his advances: but that, if no such misrepresentations were made, the jury should return a verdict for plaintiff for the contract price. Held, that where the jury returned a verdict against plaintiff, w . ..out allowing defendant for his advances, the trial judge did not abuse his discretion in granting a new trial.
    Appeal from trial term.
    Action by the H. B. Smith Company against Charles P. Chapin to recover the contract price, and for extra work, for erecting in the house of the defendant “a steam and hot-water heating apparatus. ” The contract was in writing, and the amount to be paid under said contract was the sum of $870. The sum of $35.80 was claimed for extra work ordered by the defendant. The plaintiff alleges that $500 liad been paid on account, and claims the balance due of $405.80, besides interest. The defendant admits the making of the contract, but alleges that certain representations and statements were made to defendant relating to the merits and ability of said apparatus to do the heating of defendant’s house, which statements and representations were false, and alleges that the sum of $500, referred to as having been paid on áccount of the contract, was not a payment, but was a loan and an advance made to plaintiff by defendant. At the trial the judge charged that, if the jury found that said misrepresentations were made, plaintiff could not recover, and they would have to find a verdict for defendant for the $500 which he had “loaned and advanced” to plaintiff; but if no misrepresentations were made then the jury should find a verdict for plaintiff for the amount claimed. The jury found a verdict for defendant, allowing him no recovery for the $500. From an order granting plaintiff’s motion for a new trial on the minutes, defendant appeals.
    Argued before Ehrlich, G. J., and McGown and Van Wyck, JJ.
    
      Kemson <6 Parsons, for appellant. Smith, Bowman & Close, for respondent.
   McGown, J.

We have carefully examined the case on appeal, also the exceptions therein; and, considering the instructions given by the trial justice in his charge to the jury, and also the verdict rendered herein, we think that the action taken by the trial justice in granting the order appealed from was a correct and proper one under the circumstances as disclosed upon the trial, and that the trial justice exercised a proper discretion in granting such order, and that the rights of each of the parties to the action would be best served by a new trial herein in accordance with said order. The order appealed from will therefore be affirmed, with costs to the appellant. All concur.  