McCain v. Minnerly ( 1920 )

Order unanimously affirmed, with costs. The case was tried and submitted to the jury on a defense of justification, not pleaded in the answer; but apparently this was done with the acquiescence of both parties, and is not, therefore, a valid ground of objection to the verdict, nor was such ground urged. Assuming that the case was tried upon this issue, there was a serious question of fact as to whether the plaintiff had committed a felony; and under the circumstances of the case we think that the judgment of the trial court upon the weight of the evidence upon this subject should not be disturbed. We have not considered the weight of evidence on the question of the delay in arraigning plaintiff before a magistrate, for the verdict might have been based on a finding against the defense of justification. Present — Jenks, P. J., Rich, Putnam, Blaekmar and Kelly, JJ.