in Martin v. New York Life Ins. Co., 148 N. Y. 117. I think the action of the trial justice in applying this rule and dismissing the complaint as to the first cause of action alleged was correct. The judgment appealed from should be affirmed, with costs.

Judgment reversed and new trial ordered, with costs to appellant, to abide event.

JAMES L. KNOx, Appellant, v. ARTEMAS WARD and WILLIAM Gow, Respondents.

APPEAL from an order setting aside a verdict in favor of plaintiff and granting a new trial.

James Armstrong, for appellant.

Seth Sprague Terry, for respondents.

DELEHANTY, J. The order appealed from assigns as reason for setting aside the verdict herein that it is contrary to the evidence and for excessive damages. The action was to recover the sum of $397.50, being for 13,250 copies of the Boston News Bureau, a paper published by plaintiff's assignor. The issue litigated was

as to the terms of the oral contract of sale, and the sole question of fact submitted to the jury was whether, as claimed by plaintiff, the defendants were chargeable with all the copies delivered them, with privilege to return the unsold ones, if any, or whether the agreement was, as asserted by defendants, to pay only for such papers as they sold, and not required to return unsold copies. Upon this issue there was a direct conflict of testimony, represented by a witness on each side. A letter was put in evidence by defendants, signed by plaintiff, and addressed to defendants, which was duly received by them shortly after the making of the contract in question, the material part of which is as follows: "I also assume that I was correct in my belief that you agreed to pay us three cents a copy for such copies as were sold at the Elevated stands on and after Monday, October 5th." The defendants conceded there was due plaintiff thirteen dollars and fifty-six cents, but the jury found a verdict for the full amount claimed, which was set aside for the reasons stated.

It is unnecessary to critically analyze the testimony herein for

the purpose of determining the weight to be attached to any portion thereof because we agree with the trial justice that the inherent probabilities are against the plaintiff. So anxious was he to introduce his paper, that for an indefinite period antedating the contract in question he furnished daily to defendants a number of copies gratis, the only stipulation being that they were to retail them at a certain price. Plaintiff's letter bears out the theory of defendants' version of the agreement, and the conclusion reached by the trial justice commends itself to our approval as proper under the circumstances. As was said in Ferguson v. Gill, 74 Hun, 568, "in passing upon a motion of this character it must be remembered that the trial judge has had the advantage of seeing the witnesses, hearing their testimony, noting their manner, and of becoming impressed with the weight to be attached to evidence offered, which it is impossible to have photographed upon the record on appeal. And in a case where he becomes impressed with the preponderance in favor of either side, or thinks that injustice has been done by the verdict, it is a proper exercise of the power vested in him to set aside such a verdict."

We conclude, therefore, that there has not been an abuse of judicial discretion herein, and it follows that the order appealed from must be affirmed, with costs and disbursements.

O'DwYER, J., concurs.

Order affirmed, with costs.

DORA LUSTIG, by MOSES LUSTIG, her Guardian ad litem, Respondent, v. THE INTERNATIONAL NAVIGATION CO., Appellant.

APPEAL from a judgment entered in favor of plaintiff, rendered upon the verdict of a jury, and from an order denying a motion for a new trial.

Robinson, Biddle & Ward (Charles M. Hough, Norman B. Bucher, of counsel), for appellant.

John Bogart, for respondent.

DELEHANTY, J. The judgment and order appealed from must be reversed. The conceded question in the case upon which all

others hinge, is whether the defendant ever received into its care the baggage in question. If there was no delivery to it there could be no liability for such only attaches from the time of delivery and acceptance. Grosvenor v. N. Y. C. R. R. Co., 39

N. Y. 34.

The most favorable inference to be drawn from the testimony in aid of plaintiff's contention that there was a delivery, brings it far from the point of connection. The plaintiff's own testimeny is to the effect that when she arrived at Antwerp she took the receipt or bill of lading which she had received for her baggage at Slatro, when she commenced her journey, and gave it to the trainman, who in return gave her a freight receipt for same. This was in the railroad station, and then and there she says she saw her baggage. This freight receipt purports upon its face to have been issued by the Imperial Royal Austrian Government Railways, and on the reverse thereof is written, "Baggage will follow as soon as it arrives," and stamped, "Red Star Line, Antwerp, May 25th, 1901, Baggage Department." While it is conceded that the Red Star Line is part of the defendant corporation, yet I have searched the record in vain to discover authority in any one to place its stamp in writing upon the back of that paper; and yet, it in itself is relied on to connect and bind defendant in this case. There is not a vestige of evidence of delivery to defendant, and the very paper relied upon negatives the proposition. For, even assuming the stamp and writing in question were regularly placed thereon by defendant's duly authorized agent, the evidence shows that at the time it was done there had been no delivery. The burden was on the plaintiff to show a delivery, and until she did so defendant could not be made responsible for the baggage in question. Aikin v. Westcott, 123 N. Y. 363.

The motion to dismiss should have been granted, and for the error thus committed the judgment and order appealed from must be reversed and a new trial granted to appellant, with costs to appellant, to abide the event.

O'DWYER, J., concurs.

Judgment and order reversed and new trial ordered, with costs to appellant, to abide event.

FRANK B. LASETTE and JEREMIAH MURPHY, composing the firm of F. B. Lasette & Company, Respondents, v. WILLIAM A. PARKE, Appellant.

APPEAL from a judgment in favor of plaintiffs, rendered upon a verdict directed by the court at Trial Term, and from an order denying defendant's motion for a new trial.

Johnson & Hess (Otto T. Hess, James A. C. Johnson, of counsel), for appellant.

Albert J. Appell (George H. Taylor, Jr., of counsel), for respondents.

DELEHANTY, J. At the opening of the trial defendant moved for a dismissal of the complaint, for failure to state facts sufficient to constitute a cause of action. This was denied and renewed again when the evidence was all in. That motion was again denied. Defendant then asked that a verdict be directed in his favor. Neither party asked to have any question of fact submitted to the jury. It is well settled that in such a case, where the party whose request is denied does not thereupon request to go to the jury upon the facts, a verdict directed for the other party stands as would the finding of a jury for the same party in the absence of any direction; all controverted facts, and all inferable facts in support of the judgment will be deemed established in favor of the party for whom the verdict was directed. Thompson v. Simpson,. 128 N. Y. 270, 283. The court having directed a verdict for the plaintiffs, it only remains to be ascertained whether there was evidence to sustain his finding. If there was, the verdict must not be disturbed, and the converse of that proposition is equally true. Fogarty v. Hook, 84 Hun, 165.

There are but two points relied upon by appellant for a reversal of the judgment, which will be considered separately. The first concerns the guarantee. It is undoubtedly the law, as claimed by appellant, that if the original debt or obligation is already incurred and undertaken previous to the collateral undertaking, then there must be some new and distinct consideration to sustain the guarantee. But that law does not apply here for the reason. that it plainly appears from the record that the original and collateral agreements in question were executed by defendant on the

same day, and concurrently delivered to and accepted by the plaintiffs. Assuming, therefore, that there was no legal consideration expressed in the guarantee paper, under the circumstances it was a binding obligation, because the original contract was founded upon a good consideration, and such being the case, that would support the subsidiary one also. Erie Co. Savings Bank v. Coit,

104 N. Y. 532.

The second point concerns the time of payment of the amount sued for, and reserved by the principal contract to a period when the permanent loan should have been placed upon the building and premises in question. The theory of appellant that the record shows that plaintiffs are not yet entitled to that payment is not borne out by an inspection thereof. It stands undenied that Mr. Johnson, the attorney in fact for defendant, informed the plaintiffs, after the full completion of their work, and before the commencement of the action, that that loan had been placed, and when they asked of him the money due them he said they (meaning defendant) were " short," as they had not received enough money. There can be no dispute that he referred to the permanent loan in question. Furthermore, proof was received on the part of the plaintiffs in the shape of permanent mortgages covering the property in question, which bears out the contention that the permanent loan had been placed, as was testified Mr. Johnson has said. Upon the whole case we are unable to discover the commission of any error prejudicial to the appellant, and we conclude that the trial justice was correct in the position maintained by him in this matter. True it may be hardship upon the appellant to be saddled with this judgment, but it is the consequence of his own act, with which we have nothing to do.

It follows, therefore, that the judgment and order appealed from must be affirmed, with costs.

O'DWYER, J., concurs in result.

Judgment and order affirmed, with costs.

MARY PEASE, Respondent, v. SARAH FREIWALD and JULIA JOSEPHS, Appellants.

APPEAL from an interlocutory judgment overruling demurrers to a complaint.