Milne v. Cruikshank , 190 A.D. 908 ( 1919 )

The following is the opinion of the court below:

Clark, J.:

The verdict is set aside and a new trial is granted. The verdict necessarily involved a finding by the jury that the defendants, with full knowledge of the language of the covenant against nuisances contained in the deed of the Mt. Vernon lots, waived such covenant and were willing to exchange their Manhattan property for the Mt. Vernon property. Such knowledge and waiver were not established by a fair preponderance of evidence, and the finding of the jury was in that respect against the weight of evidence.