Opinion
April, 1894.
Charles W. Gould ( John L. Wilkie and Lloyd McK. Garrison, of counsel), for appellants.
John W. Weed, for respondent.
The bulk of appellants' very voluminous brief is addressed to the point that the verdict is without proof to sustain it, or, at all events, is against the weight of evidence. But, since at no stage of the trial was a motion made by the plaintiffs for a direction in their favor, we are precluded from consideration of the question whether the verdict be unsupported by evidence ( Schwinger v. Raymond, 105 N.Y. 648), and by affirmance of the judgment and the order denying a new trial by the General Term of the court below we are equally powerless to reverse on the ground that the verdict is against the weight of evidence. Arnstein v. Haulenbeek, 16 Daly, 382; Stark v. Grant, 16 N.Y. Supp. 526. Our function, therefore, is confined to a review of errors in law duly presented by exceptions to the rulings of the court.
The exception taken to the allowance of the opening to the defendant is untenable. A plea of payment is new matter, and the burden of proving it is upon the defendant. McKyring v. Bull, 16 N.Y. 297, and cases collected in note; 69 Am. Dec. 705.
The chief allegation of error by the appellants proceeds upon the assumption of an account stated between the parties. But whether the account has been stated was, on the evidence, a question of fact; was submitted to the jury in an unexceptionable charge, and with us the verdict is conclusive of the issue.
The recall of the witness after the close of the cross-examination and his testimony to matter not strictly in rebuttal were allowable in the discretion of the court, and hence are not the subject of exception. Marshall v. Davies, 78 N.Y. 414.
A refusal to strike out evidence admitted without proper objection is not error of law ( Holmes v. Moffat, 120 N.Y. 159), and an objection to evidence as irrelevant and immaterial is not equivalent to a claim that it is not within the pleadings, for evidence may bear upon the issue, and yet so remotely and insignificantly as to be immaterial and irrelevant.
The multitude of other exceptions in the record have been examined, and the result is a clear conviction that they are invalid. To explore them in detail and elaborately demonstrate the futility of each would involve a labor as tedious as unprofitable.
Upon a review of the entire record we are satisfied that, in the trial of the cause, no error was committed to the prejudice of plaintiffs, and that the judgment is in accordance with the justice of the case.
The judgment should be affirmed, with costs.
BOOKSTAVER and BISCHOFF, JJ., concur.
Judgment affirmed, with costs.