Bigelow Co. v. Gray

Per Curiam. The application for an adjournment of the trial in the court below was addressed to the discretion of the trial justice. Whether that discretion was properly exercised, may be reviewed by the general term of that court but cannot be reviewed in this. Wakefield v. American Surety Co., 13 Daly, 349; Walsh v. Schulz, 12 id., 108; McEteere v. Little, 8 id., 167; Schwartz v. Oppold, 74 N. Y., 307. And for the same reasons this court cannot reverse the judgment, because it'is against the weight of evidence—there being some evidence on which the jury could find as it did. The answer did not allege that the cylinder which plaintiff was to construct was made of material differing from that called for by the contract, or that it was of less value in consequence; nor was any motion made by the defendant to conform the pleadings to the proof; and the jury seem to have allowed him something for this difference in value. The exceptions to the admission of evidence, we have examined, and do not think there was any error committed in this respect which would, in any way, have affected the verdict to defendant’s injury. . The judgment should be affirmed with costs.