Henry Kroeger Construction Company, Respondent, v. Frederick Snell, Appellant

Henry Kroeger Construction Company, Respondent, v. Frederick Snell, Appellant. Bills and notes — action on promissory note — weight of evidence supporting verdict. Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 5th day of March, 1908, in favor of the plaintiff; also from an order entered in the same office on the 9th day of March, 1908, denying the defendant’s motion for a new trial. [MAJORITY — Woodward, J.;] Woodward, J.; The Henry Kroeger Construction Company, through its president, made and delivered its promissory note for §3,000 to the defendant, and the latter procured its discount at a bank. The plaintiff claims that the proceeds of this note never 6ameinto its possession, but were retained by the defendant; The latter claims that the proceeds of the note, less the discount of §30, were paid over to the president of the plaintiff. The case was complicated by an alleged illegal agreement between the parties, but the issue tried was whether the defendant delivered the proceeds of the note to the president of the plaintiff company, and upon this issue there was a distinct conflict of evidence. There were no motions to dismiss at the close of plaintiff’s case; none at the close of the tes-' timony, and the case was submitted to'the jury under a charge to which neither party took any exceptions, and while the appellant complains at certain evidence being permitted in the case over his objection and exception, none of .these exceptions appear to be seriously urged, and so far as we are able to discover there-was no error' in this regard. There is, therefore, no question of law presented except, possibly, that the verdict is'against the weight of evidence. But the court charged correctly as to the weight of evidence; there was one witness on one side and two witnesses oil the other, and the court pointed out clearly the interest of each of the witnesses and called attention to defects in the plaintiff’s evidence, so that the whole matter went to the jury, and where there is sufficient evidence to support a verdict, the appellate courts as a rule do not disturb it. This case seems to have been carefully tried, and substantial justice has. been reached so far as we are able to discover. The judgment and order appealed from should be affirmed, with costs. Jenks, Hooker, Gaynor and Rich, JJ., concurred. Judgment and order affirmed, with costs.