The action is to recover the purchase price of an Otto gas engine, sold and delivered by the plaintiff to the defendants in or about June, 1891. The defense is that, the engine was not properly constructed, and that the plaintiff did not fully perform his part of the contract;
The questions of 'fact arising under the issues were submitted to the jury, and they found adversely to- the defendants.
The General Term affirmed the judgment, and because, in the opinion filed, reference is incidentally made to the omission of any request to dismiss the complaint when the. plaintiff rested and on the close- of the casé, or of any exception to the charge, the appellants argue that the General Term decided that it had no power to reyerte in the absence of such motion or exception, and apparently assume that if such motion had been made or excep
The appellants are quite right when .they say that the General Term had power to review the judgment on appeal, and to order a new trial if, in its opinion, the judgment was contrary to the evidence,, whether exceptions were taken or not. Wehle v. Haviland, 42 How. Pr. 399; Kelly v. Frazier, 2 Civ. Pro. 322; Macy v. Wheeler, 30 N. Y. 231; Barrett v. Third Ave. R. R. Co., 45 id. 628, 632; Hamilton v. Third Ave. R. R. Co., 53 id. 25; Smith v. Aetna Ins. Co., 49 id. 211; Schwinger v. Raymond, 105 id. 648.
In Hamilton v. Third Avenue R. R. Co., supra, the court said: “ The Special Term upon the motion, and the General Term upon the. appeal from its order, had the power, and it was the duty of each to examine and determine whether the verdict was against the weight of evidence and the justice of the case, and..if of opinion that.it was, to set it aside and order a new trial.”
In Smith v. Aetna Insurance Co., supra, the court (at p. 216) aptly said that justice would be promoted if the court below should more frequently exercise its unquestioned right of reviewing verdicts upon the facts.
. The court in Kaare v. Troy Steel & Iron Co., 139 N. Y. 369, was emphatically of the opinion that the General Term, on appeal from an order denying a motion for a new trial, should not affirm the order simply out of deference to the trial judge, but should exercise an independent judgment and grant a "new trial in a proper case if the verdict is against the weight of evidence, or otherwise the right of appeal, secured by the Code, is of very little value. See, also, Nutting v. Railroad Co., 91 Hun, 258; Bosko v. Railroad Co., id. 320, 323.
The difficulty with the appellants’ argument is that there is nothing in the record which affirmatively establishes that the General Term failed to perform its full duty; and inferentially at least it was fully performed. If by the record it affirmatively appeared that the General Term had neglected to review the evidence, or had held that it was without power to do so in the
As we cannot review the facts (Rowe v. Comley, 11 Daly, 317, 318), and the exceptions to the admission and exclusion of evidence . are without. merit, the judgment must' be affirmed, with •costs.
- Daly, P. J., and Bischoff, J., concur.
Judgment affirmed, with costs.