[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 218
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 219 The defendants having answered, the court had the right to receive a verdict for a greater sum than the judgment demanded in the complaint, and render a judgment against the defendants for the full amount of the verdict, because the same was consistent with the case made by the complaint and embraced within the issue. (Code, § 275.)
The decision in the action in favor of John W. Audubon and Victor G. Audubon, tried before Judge INGRAHAM, was not a bar to this. No judgment was ever entered in that action, and the order dismissing the complaint therein, with costs, was amended, prior to the trial of this, so as, in terms, *Page 220 to grant a nonsuit against the plaintiffs and discontinue that action on the payment of the defendants' costs.
The first time the defendants' counsel moved for a nonsuit, it was on the ground that there was no proof that the plates were destroyed. The plaintiff then proved they were destroyed, every one of them. The defendants' counsel then renewed his motion to dismiss the complaint, which was denied, and he excepted. The plaintiff gave further evidence, and again rested, when the defendants' counsel renewed his motion for a dismissal of the complaint, which was denied, and an exception noted. The defendants' counsel then gave some evidence, and "again renewed his motion for a nonsuit," which was denied, and he excepted. He did not renew such motion again, or specify any ground on which he made it, at any time, except the first, when he moved on the sole ground that there was no proof that the plates were destroyed, which ground was then obviated by proof that the plates were destroyed. These motions, therefore, did not present the questions, whether the plaintiff should have proved he paid, or offered to pay, the premium for the policy contracted for, and that he gave the defendants notice of the loss, or furnished them with proof of the same. If the defendants' counsel had objected to a recovery on those grounds, they might have been obviated, if necessary, by the requisite evidence; and we cannot presume the plaintiff was unable to give such evidence.
The exception taken by the defendants' counsel to the charge of the judge to the jury was general, and, therefore, is untenable, if any portion of the charge was correct.
It is too plain to admit of discussion that some portions of the charge were correct, and I am of the opinion no part of it was erroneous. It was proper for the judge to instruct the jury to find upon particular questions of fact (Code, § 251); and whether their verdict was against evidence was a question the judge who presided on the trial might determine; and the decision of the special and general terms of the court in which the action was tried, that the verdict was not against evidence, *Page 221 settles that question. There is no provision in the Code authorizing this court to review that decision.
For these reasons, I am of the opinion the judgment of the court below should be affirmed.