Algeo v. Duncan (39 N.Y. 313, 1868)

Woodruff, J.

The 264th section of the Code of Procedure provides, that “ The judge who tries a cause may, in his discretion, entertain a motion to be made on his minutes to set aside a verdict and grant a new trial upon exceptions or for insufficient evidence, or for excessive damages.”

I am not willing to concede, that, if no such provision were found in our Code, there is any want of power in the judge presiding at the trial of a cause, to set aside a . verdict rendered by a jury, when it is palpably against law, or wholly and clearly unwarranted by the evidence, or where it is ren dered in the face of explicit instructions to the contrary. According to the argument urged here, if the judge had on this trial instructed the jury in express terms tb find for the defendant, as he might properly have done, and the jury had nevertheless, through prejudice, partiality or mistake, violated the'instructions and found for the plaintiff, the judge could not have-set the verdict aside, but was bound to put the defendant to the delay and expense of making a formal case and bringing it to a hearing at a subsequent term.

Nor do I think that the provision of the Code above cited by any implication limits or abridges the power which would exist had it not been enacted. It is, however, sufficient to say, that the reasonable interpretation of the section cited warrants the motion which was here made.

The argument on 1 ehalf of the appellant, ingeniously presented and skillfully urged by his counsel, is, that, whenever a plaintiff has made a prima facie case, so as to put the defendant upon his defense, a verdict for the plaintiff cannot be said