Learned v. Tillotson ( 1882 )

By the Court.—Freedman, J.

This action was brought for an accounting. Although an issue had been fried by a jury and a verdict rendered in favor of the plaintiff, on the question of the existence of the alleged agreement, the plaintiff saw fit not to rely exclusively upon the verdict at the final hearing. He again called and examined witnesses, and no doubt made the best case he could, and, in addition, at the close of his case he offered the verdict and the evidence relating to all the proceedings upon the trial of the special issue. The court, at special term, upon the whole case, reached a conclusion at variance with the finding of the jury, and upon full consideration I think justly so. Nor can the power of the court in this respect be questioned. The Code of Civil Procedure has made no change in the long established rule that the office of a special verdict in an equity case is simply to inform the conscience of the court, and that the court on the final hearing is not precluded from rejecting it and finding the fact for itself. The merits have been so fully discussed in the course of the elaborate opinion delivered by the learned chief judge at special term, that nothing of importance remains to be added. All the exceptions being untenable, the judgment should be affirmed, with costs.

Russell, J., concurred.