Algeo v. . Duncan

Woodruff, J. The 264th section of the Code of Procedure provides, that “ The Judge who tries a cause may, in his discretion, entertain a motion to be made on his minutes to set aside a verdict and grant a new trial upon exceptions or for insufficient evidence, or for excessive damages.” I am not willing to concede that, if no such provision were found in our Code, there is any want of power in the Judge presiding at the trial of a cause to set aside a verdict rendered by a jury, when it is palpably against law, or wholly and clearly unwarranted hy the evidence, or where it is rendered in the face of explicit instructions to the contrary. According tq the argument urged here, if the Judge had on this trial instructed the jury, in express terms', to find for the Defendant, .as he might properly have done, and the jury had nevertheless, through prejudice, partiality, or mistake, violated the instructions and found for the Plaintiff, the Judge could not have set the verdict aside, but was bound to put the Defendant to the delay and expense of making a formal case, and bringing it to a hearing at a subsequent term. ¡Nbr do I tiling that the provision of the Code above cited by *108 any implication limits or abridges the power which would exist had it not been enacted. It is, however, sufficient to say, that the reasonable interpretation of the section cited warrants the motion which was here made. The argument on behalf of the Appellant, ingeniously presented and skilfully urged by his counsel, is, that whenéver a Plaintiff has made a primá facie case, so as to put the Defendant upon his defence, a verdict for the Plaintiff cannot be said to be upon “ insufficient evidence,” however ‘fully or conclusively the defence relied upon may be established, or however the Plaintiff fails to disprove or avoid the legal effect of such defence. That in such case the verdict may be against evidence, but cannot be deemed to be rendered upon “ insufficient evidence,” and therefore however clear it may be that, on a case made and brought to a hearing, the verdict must be set aside, the Judge at the Trial Term has no jurisdiction to entertain a motion upon his minutes and set the verdict aside “ for insufficient evidence.” In the present case it was admitted that the only defence was infancy. There was no issue upon the making of the note in question, or the fact of the transfer thereof to the Plaintiff. The answer of the Defendant admitted both. True, the note was read in evidence by the Plaintiff, but neither its making nor endorsement to the Plaintiff was in issue. The issue was upon the defence of infancy, and that defence was fully and completely established by two witnesses, and yet, without any evidence either to contradict or avoid the defence, the Plaintiff' had a verdict. That is to say, upon the trial of an issue as to which the Plaintiff had no evidence which could warrant the jury in disregarding the defence which the Defendant had pleaded and proved, and the truth of which alone they were to try, they arbitrarily found for the Plaintiff. It is clear, I think, that the verdict in this case had no sufficient evidence to support it, and, therefore, within the most precise, literal, and technical meaning of the Code, could properly be set aside “ for insufficient evidence.” It was not a case in which the Plaintiff' had thrown some doubt, however *109 slight, upon the truth of the defence, nor one in which he had given some slight evidence in avoidance of its legal effect, so that the motion to set aside could he regarded as founded on the alleged preponderance of the Defendant’s proof, hut the bold case of a trial of a single issue, in which the Plaintiff had a verdict without any testimony in conflict with an established defence. In this view it is not material that, if the Defendant had offered no testimony, the Plaintiff would have been entitled to an assessment and a verdict; the verdict which he had upon the issue actually tried was without evidence on his behalf to support it. Nor, in my judgment, is the right of the Judge to entertain such a motion upon his minutes rendered less clear by calling this verdict a verdict against evidence. True, it is a verdict in the face of clear and uncontradicted proof, establishing the issue in the Defendant’s favor, but it is, nevertheless, a verdict without sufficient evidence to support it. The term “ insufficient evidence,” as used in the Code, should be construed with reference to the actual issue upon which the jury were to pass, and not less with reference to the whole state of the case made by the adverse party. Suppose the sole issue in a given case was upon the plea of release. The Defendant, having the affirmative of that issue, produces and proves a release under the hand and seal of the Plaintiff, and the latter gives no evidence in avoidance of the release sufficient to warrant the submission of any question to the jury, and yet the jury find for the Plaintiff. It is true, that such a verdict would be against the Defendant’s conclusive evidence; but it is equally true, that such a verdict is without any sufficient evidence. The power in question is to be cautiously exercised, and it is left to the sound discretion of the Judge whether he will act upon his own minutes, and the views which, while the proceedings on the trial are fully in his mind, and fresh in the mind of counsel, or whether there is so much of doubt, that the case should stand over for more deliberate and careful scrutiny upon a case which shall bring all the evidence again before him; but the power is a *110 useful one, to be exercised in a clear case, and a large saving of expense and delay to both Plaintiff and Defendant. The order appealed from should be affirmed, and, in accordance with the stipulations upon which the Plaintiff has brought his appeal to this Court, judgment absolute for the Defendant should be rendered. Judgment affirmed. JOEL TIFFANY, State Reporter.