Van Valkenburgh v. Evertson

By the Court,

Savage, Ch. J.

The judgment should be reversed, if it were in the power of this court to reverse it; but sitting as a court of common law, to review questions of law upon a writ of error, we have no more power to reverse this judgment, because the verdict is against evidence, than we have in any other case brought from a court of common pleas where the verdict is against evidence. "Where a verdict is against evidence in a court of record, the only remedy is by application to the same court to set aside the verdict on that ground. If the court refuses, the party injured is remediless, unless such refusal were a flagrant abuse of all judicial discretion, this court would not interfere by mandamus ; and let the abuse be ever so great, we cannot interfere upon a writ of error. Where a cause is tried by a jury in a justice’s court, the justice has no power to set aside the verdict; that power exists only in the courts of common pleas, who are authorized to review the proceedings of justices’ courts on certiorari, and they can and ought to reverse the judgments injustices’ courts, as well for errors of the jury as for errors of the court. The common pleas is the only tribunal that can give relief where the jury have erred in a jutice’s court. In this case, the mayor’s court had power to reverse the judgment in the justice’s court, and in my opinion should have done so ; but that court thought otherwise, and if the court erred, that er-. ror cannot be corrected by writ of error. There was no error in law; if any, it was an error in the exercise of the discretion of the court in refusing to interfere on a question of fact. The judgment of the mayor’s court must therefore be affirmed.

Judgment affirmed,