Nassau-Suffolk Pet Supply, Inc. v. Ashdown
| Decision Date | 07 December 1964 |
| Docket Number | NASSAU-SUFFOLK |
| Citation | 22 A.D.2d 891,255 N.Y.S.2d 393 |
| Parties | PET SUPPLY, INC., Respondent, v. Ernest ASHDOWN, d/b/a Hempstead Agency, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Gehrig, Ritter, Coffey & Stein, Hempstead, for appellant; Charles G. Ritter, Hempstead, of counsel.
Sheehy & Friedler, Hempstead, for respondent; Clinton P. Sheehy, Hempstead, of counsel.
Before BELDOCK, P. J., and UGHETTA, KLEINFELD, HILL and RABIN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages arising from the defendant insurance agent's alleged failure to renew certain fire insurance policies covering plaintiff's premises upon which a fire occurred after expiration of the policies, the defendant, by permission of the Appellate Term of the Supreme Court, appeals from an order of that court, made March 23, 1964, which affirmed a judgment of the District Court of Nassau County, entered October 15, 1963, after trial, upon a jury's verdict in the plaintiff's favor.
Order of the Appellate Term reversed on the law and on the facts, and new trial granted, with costs to defendant to abide the event.
In our opinion, defendant's motion to set aside the verdict as against the wright of the evidence should have been granted and a new trial ordered. It is the duty of the trial court to maintain a "reasonable consistency between the wright of evidence and the verdict reached" (Cook v. Lewis, 285 App.Div. 1201, 1202, 140 N.Y.S.2d 662, 663; Mann v. Hunt, 283 App.Div. 140, 142, 126 N.Y.S.2d 823, 825). Where the trial court is of the opinion, as it was here, that in weighing the evidence the jury has not appraised correctly its relative persuasiveness and probative force, the court is empowered to set aside the jury's verdict and to order a new trial (Blum v. Fresh Grown Preserve Corp., 292 N.Y. 241, 245, 54 N.E.2d 809, 811). In view of the proof in this record, we think that power should have been exercised.
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