Coddington v. Carnley

Hilton, J. It is very seldom that a verdict of a jury is disturbed upon these grounds, where the evidence has been fairly submitted; and although the case might show that the weight óf the evidence seemed to be with the defendant, yet, to justify the court in setting the verdict aside, the preponderancy should be so great as not only to lead to the belief that injustice had been done, but also to warrant the conclusion that the verdict must have been the result of prejudice, passion, undue bias, or corruption. Jackson v. Loomis, 12 Wend. 27; Graham on New [530] Trials, 452; Diblin v. Murphy, 3 Sand. S. C. 19; Keeler v. Fireman's Ins. Co., 3 Hill, 250; Eaton v. Benton, 2 id. 576; Collins v. Albany & Schenectady RR. Co., 12 Barb. 492; Lee v. Schmidt, 1 Hilton R. 537. In this case the questions determined by the jury were proper to be submitted to and passed upon by them; and although some reason exists for saying that the finding in respect to the time of the levy was contrary to the charge of the judge, yet that affords no ground whatever for interfering with the verdict. Astor v. Union Ins. Co., 7 Cowen, 202. The indorsement of the levy on the execution was an official act of the deputy, and was prima facie evidence of the facts contained in it; standing alone, it would be conclusive; but, like all such evidence, it might be controverted by other testimony. Such was introduced in this case, and, taken in connection with the fact that the goods were sold by the defendant on June 3d, 1851, upon a previous notice, of six days, and which notice it is- reasonable to presume was given shortly after the removal of the goods, the jury evidently considered the testimony of the plaintiff’s witnesses entitled to greater weight than that of the deputy sheriff, aided by his entry on the execution. Glover v. Whittenhall, 2 Denio, 633; Cornell v. Cook. 7 Cowen, 310. The evidence, we have seen, was conflicting; but none of the witnesses were impeached, and it was the right and province ot the jury to determine the questions presented for their consideraron, uncontrolled by the court. I can therefore see no reason .■for disturbing their verdict upon the ground that it is against rfche weight of evidence. In conclusion, I may be permitted to say that it seems to me undue importance was attached, not only at the trial but on the .■■argument of this motion, to the testimony in respect to the particular day on which the levy was actually made by the deputy - of the defendant. Whether it was made in the fore part or the latter part of May, 1851, ought not, in my judgment, to have .-any controlling influence in determining whether this action was ’brought within the time limited by statute. [531] It is true that this is one of that class of actions required to be brought within three years after the cause thereof accrued, and which would be the day the levy was made, (Code, § 92); but by § 9 of 2 R. S. 448, it is declared that the period which may elapse between the death of any person and the granting of letters testamentary on his estate, not exceeding six months, and the period of six months after the granting of such letters, shall not be deemed any part of the time limited by any law for the commencement of actions by executors. Now, in this case it is assumed, and indeed proven by both sides, that the levy was actually made in May, 1851. The testatrix died in January previous. Letters testamentary were not issued within six months after her death, and consequently, by this provision of the Revised Statutes, the plaintiff might have brought his action at any time in May, 1851, or even several months later, and the Statute of Limitations would be no bar to his recovery. Nelson v. Lounsbury, 3 Barb. S. C. 125; Babcock v. Booth, 2 Hill, 181. Motion for a new trial denied, with costs.