Dorwin v. Westbrook

LANDON, J.

This case has been tried three times, and each time the jury has found for the plaintiff, and thus has three times found in effect that the plaintiff Dorwin signed releases in full satisfaction of the canse of action set forth in the complaint by the fraudulent procurement of the defendant The judgment upon the first trial was reversed upon other grounds than that the verdict of the jury was against the weight of evidence; Hardin, P. J., however, expressing his opinion that it was. 71 Hun, 405, 24 N. Y. Supp. 955. The judgment upon the second trial was reversed upon the _ ground, among others, that the verdict of the jury was against the weight of the evidence. 86 Hun, 363, 33 N. Y. Supp. 449. The facts in the record before us bearing upon the execution of the releases- seem to be substantially the same as set forth in the opinion of the court in 86 Hun, 33 N. Y. Supp., and need not be repeated here. I think the verdict is against the weight of the evidence. The question is, shall we again set aside the verdict? There are circumstances of hardship for the plaintiffs in holding them to these releases which will almost inevitably re-suit, if the question should he submitted to the jury (and I think it must be), in_ their again finding the same verdict. As the jury are the final arbiters of the facts, the court must, after affording them reasonable opportunities^ to compare their own opinions of the facts with those held by the appellate court, finally accept the judgment of the jury. It may be, as was once remarked by a learned judge, that “the correctness of judicial opinions on mere questions of fact may well be distrusted when we find them confessedly opposed to the common sense of mankind.” Ernst v. Railroad Co., 35 N. Y. 9, 41. See Kummer v. Railroad Co., 14 Misc. Rep. 507, 35 N. Y. Supp. 1066; Nichols v. Tuttle (Sup.) 12 N. Y. Supp. 394; Fowler v. Insurance Co., 7 Wend. 270; Betsinger v. Chapman, 24 Hun, 16; Talcot v. Insurance Co., 2 Johns. 467; Hamilton v. Railroad Co., 40 N. Y. Super. Ct. 376. I advise an affirmance. Judgment and order affirmed, with costs. All concur except MERWIN, J., dissenting.