Teeter v. Teeter

Hardin, P. J.

Appellant claims “ there was not sufficient evidence of the execution and delivery of the deed to warrant the verdict of the jury.” After a careful perusal .of the evidence, we are of the opinion that the finding of the jury and the finding of the special term are sustained by ample evidence, and that the conclusions readied upon the evidence are in accordance with the weight of the testimony. It is true the defendant offered considerable evidence tending to support the position taken in his behalf. After a careful perusal of the evidence on both sides, and giving such weight as should properly be allowed to the verdict of the jury, and the finding of the trial judge, we are of the opinion that the findings made by the jury and the findings made by the trial court should be sustained. Weighmann v. Sire, (Sup.) 16 N. Y. Supp. 701 . We think the principle stated by Boardman, J., in Roosa v. Smith, 17 Hun, 139 , is applicable here. He said: “But we think it very clear that a general term cannot, in a doubtful case, upon conflicting evidence, like the one under review, assume the place of the referee, and determine, from the mere reading of the evidence, who has told the truth, or is best entitled to credit. This would be imposing upon us a duty unsafe to exercise and dangerous in its ordinary use. It would make of a referee to try an issue simply a referee to report the testimony to this court, which in such cases would review nothing but the evidence, giving such a decision as in its judgment upon the evidence is just. * * * We do not understand it can be called on in doubtful cases upon conflicting evidence, depending upon the character and credibility of witnesses, to review and readjust the facts upon the evidence as it shall appear to it on paper. ” Beckwith v. Railroad Co., 64 Barb. 299 . In the latter case it was said that, in order to warrant the court in interfering with the verdict, “the finding must be either without evidence, or so decidedly against the weight of evidence that it must have been brought about by either partiality, corruption, or gross ignorance. Heritage v. Hall, 33 Barb. 347 ; Cohen v. Dupont, 1 Sandf. 260 . ” We have looked carefully at the rulings criticised by the counsel for the appellant, and we are. not persuaded that any error was committed which was prejudicial to the appellant. Church v. Kidd, 3 Hun, 254 ; Post v. Mason, 91 N. Y. 539 . The result gives the widow and her children the farm, which was apparently paid for by the deceased husband and father, in possession of which he had been for over 20 years prior to his death, and accords with substantial justice, as shown by the evidence found in the appeal book. We think the language of Ruger, C. J., in Stanley v. Bank, 115 N. Y. 138 , 22 N. E. Rep. 29, is applicable where he says: “We may go still further, and say that, under the evidence in the case, we are of the opinion that the verdict accords with thg probabilities and justice of the case. ” Judgment and order affirmed, with costs against the appellant.

Martin, J. concurs.

Merwin, J.

I think the judgment should be affirmed.