Watters v. Weed , 99 N.Y. Sup. Ct. 607 ( 1895 )

ADAMS, J.

We have examined the record in this case with, great care, and as a result of that examination haye reached the conclusion that the verdict of the jury was against the weight of evidence. So far as we are able to discover, the plaintiff entered upon the performance of his contract with every indication of a desire-on the part of the defendants that it should be fulfilled in accordance with the terms thereof; and he was proceeding to fulfill the-same, when he was prevented by the injunction order issued out of a Pennsylvania court at the instance of a party who, so far as the record discloses, bore no relation whatever to any of the parties to-this action. There is not the slightest evidence that the defendants, instigated, or were in any manner instrumental in procuring, that order. Ko motive whatever is disclosed for any such action upon their part, but, upon the contrary, the fair inference seems to be that -it was quite as annoying in its effect upon them as upon the plaintiff, and that upon being informed of its service they undertook at once in good faith to-procure its vacation, but were not immediately successful in the attempt. It is true that they instructed the plaintiff' not to cut any more timber after the order was served, but this direction appears to have been cautionary merely, and the fact that the order was served upon them several days before it was upon the plaintiff, and that they did not attempt to prevent his cutting timber until it was actually served upon him, furnishes pretty strong evidence-that they were not very anxious to avail themselves of it as an excuse for any interference on their part.

Considerable stress seems to be laid upon the fact that when the plaintiff handed the injunction order to the defendant Mundy the latter stated that it was what he had been wanting, and the inference-sought to be drawn from this interview is that Mundy had been anticipating the service of the paper, and intended to express his. satisfaction that it had been served. It is doubtful, however, if the-evidence will warrant the construction contended for by the plaintiff,, and apparently given to it by the jury, for the plaintiff himself testifies that in connection with this remark Mundy directed him to go “right back over there”; and said that he would furnish a bond, and have the timber released by the following Monday, so that he, the-plaintiff, could go on cutting. It is true, as has already been suggested, that the defendants were not at first successful in their attempt to-have the order vacated, but there is no proof that they did not do all that lay in their power to accomplish that object. Ultimately, however; the order was vacated, but it was then too late in the season to--cut any more timber, because, as was stated to the plaintiff by Mundy, the timber was not of much value when cut with the sap in, and in such statement the plaintiff seems to have fully concurred.

Another fact appears in the case which is uncontroverted, and to which the jury does not appear to have attached the importance it deserves. That fact is that before this action was commenced, and possibly before the plaintiff had conceived the idea of charging the defendants with any responsibility, he had testified in another proceeding in the state of Pennsylvania that he was prevented from fulfilling his contract solely by reason of the injunction. Upon the whole case, therefore, we are inclined to think that, if there was any ■evidence upon which the plaintiff could fairly rest his contention, ■such evidence, in view of all the facts of the case, was hardly sufficient to warrant the jury in reaching the conclusion it did, and that consequently there should be a new trial of the action, with costs to •abide the event. All concur.