Murphy v. Haswell , 65 Barb. 380 ( 1873 )

By the Court, Ingraham, P. J.

The evidence in this case shows that the defendant was a civil engineer. As such he had often given orders to the plaintiffs, for work in their business; that they never knew him to be engaged in building boats on his own account; that they had been in the habit, previously to this transaction, of allowing'him commissions on such orders ; and that this continued down to a period subsequent to the order for the present account. That they received from the de fendant a payment on account of the boilers in question; for which the plaintiffs gave a receipt, purporting to be on account, of Wiard. The account was entered in the ledger, in the name of Wiard, and the boilers were delivered to vessels which Wiard was building. All this evidence came from the plaintiffs.

[First Department, General Term, at New York, May 5, 1873.

Ingraham and Fancher, Justices.]

In addition to this, there is testimony from the defendant that he told the plaintiffs he wanted the boilers for vessels building by Wiard; that the work was furnished to Wiard; that the plaintiffs allowed him a commission on these boilers; that they told him they had presented a bill to Wiard, and said they wished they could hold him, for them. There is also the testimony of Wiard, that the boilers were delivered at his ship-yard. On the other side is the statement that the defendant did not disclose the name of Wiard, at the time of. ordering the boilers, and that the bill to Wiard was rendered at the defendant’s request.

We think the verdict of the jury was against the clear weight of the testimony. Under such circumstances, we think justice would be promoted by ordering a new trial. In such cases, a new trial is granted only on payment of costs.

Judgment reversed, and new trial ordered on payment of costs.