Blum v. Fresh Grown Preserve Corporation

• Decision Date: 10 March 1944
• Citation: 292 N.Y. 241,54 N.E.2d 809
• Court: New York Court of Appeals Court of Appeals
• Parties: Blum v. Fresh Grown Preserve Corporation

292 N.Y. 241

54 N.E.2d 809

BLUM

v.FRESH GROWN PRESERVE CORPORATION.

Court of Appeals of New York.

March 10, 1944.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Robert J. Blum, as assignee for the benefit of creditors of Frey & Horgan Corporation, against Fresh Grown Preserve Corporation, to recover an alleged debt, in which defendant filed counterclaims. From a judgment of the Appellate Division, 265 App.Div. 843, 37 N.Y.S.2d 839, affirming, by divided court, a judgment of the Supreme Court, New York County, in favor of plaintiff entered upon an order of the court at Trial Term, Walter, J., which granted a motion by plaintiff to set aside a verdict in favor of defendant and directed judgment in favor of plaintiff for a stated sum, defendant appeals.

Affirmed.

LOGHRAN and DESMOND, JJ., dissenting.

Isador Goetz, of New York City, for appellant.

Robert J. Blum and Irving I. Brandwein, both of New York City, for respondent.

LEHMAN, Chief Judge.

The defendant, it is conceded, was indebted to plaintiff's assignor in the sum of $22,047.12 upon the causes of action pleaded in the complaint, but the defendant has pleaded as set-offs several alleged causes of action against the plaintiff's assignor arising before the assignment. At the close of the trial the plaintiff moved for a directed verdict in the sum of $22,047.12. The motion was denied and the Trial Judge submitted to the jury the question whether the defendant was entitled to recover upon its fourth and fifth counterclaims. He charged the jury in effect that it must weigh the evidence produced by the defendant and that if it believed the testimony of the defendant's witnesses it must find in favor of the defendant. The jury brought in a verdict in favor of the defendant.

The plaintiff moved to set aside the verdict and for the direction of a verdict in his favor in the sum of $14,502.72, conceding for that purpose that the defendant had established its fourth counterclaim and is entitled to set off the sum of $7,544.40 against the indebtedness due to the plaintiff. The motion was granted on the ground that the testimony of the defendant's witnesses intended to establish the fifth counterclaim is incredible as matter of law. The Appellate Division affirmed the judgment in favor of the plaintiff entered upon the directed verdict, one justice dissenting and voting for a new trial.

‘Trial by jury, in all cases in which it has been heretofore used’ was declared ‘inviolate’ by the Constitution of 1846, art. 1, s 2. The source of the constitutional right to a trial by jury in appropriate cases may be traced to earlier Constitutions. The guarantee of that right has been renewed in each constitution thereafter adopted. The defendant challenges the right of the trial court to direct a verdict in this case, claiming that only the jury may decide whether the testimony of the defendant's witnesses is credible and that its rejection as ‘incredible’ by the court is an invasion of the defendant's right to a trial by jury.

‘The measure of the right of trial by jury preserved by the state Constitution (article 1, s 2) * * * is the right to a jury trial in such cases as it existed at the time of the adoption of the Constitution of 1846.’ Moot v. Moot, 214 N.Y. 204, 207,108 N.E. 424, 425. The right of the defendant to a trial by jury of any question of fact presented by the evidence in this case cannot be successfully challenged. We must determine whether measured by the rules of law applied in 1846 and evidence produced by the defendant was sufficient to raise such a question.

In 1842 the Court of Errors, then the court of final appeal in this State, formulated, in an opinion by the Chancellor, the rule then applied: ‘Although the jury is the constitutional tribunal to decide disputed facts, it does not follow that the court must submit every question of fact to their decision as a matter of course, although the party holding the affirmative has failed to introduce sufficient evidence in point of law to authorize the jury to give a verdict in his favor. Hence it is the duty of the court, if requested by the defendant to do so, to non suit the plaintiff, where the testimony is all on his side, and where it is wholly insufficient to sustain the suit. And it is insufficient in point of law to sustain the suit where it would be the duty of the court to set aside the verdict and grant a new trial, if the jury find a verdict in favor of the complainant. But where the testimony is sufficient to sustain a verdict in favor of the plaintiff, if the jury should find one in his favor, the questions of fact should be submitted to their decision; although the judge who tries the cause may think the evidence leaves the case in so much doubt that the jury would be fully justified in...