Opinion
February, 1896.
Hoadly, Lauterbach Johnson, for appellant.
J.C. Wolff, for respondent.
The plaintiff sues to recover damages caused by the alleged negligence of the defendant.
When the action was before the General Term of the Court of Common Pleas on the prior appeal, the judgment, which was in favor of the plaintiff, was reversed and a new trial ordered, with costs to the appellant to abide the event. See 13 Misc. 276. The sole ground of reversal was that the judgment was against the weight of evidence, and the same ground is urged on this appeal.
The first trial was had before the justice without a jury. Upon the new trial, the justice of his own motion empaneled a jury, which found in favor of the plaintiff. Defendant's counsel objected to a trial by jury on the ground that the first trial having been had without one, the award of a new trial meant that it should be had in like manner. This does not necessarily follow. The Consolidation Act (§ 1372), as amended by the Laws of 1891 (chap. 378), among other things, provides: "When an issue of fact has been joined in an action or special proceeding and a trial by jury has not been demanded, the justice may in his discretion at any stage of the action or proceeding direct that a trial thereof be had by jury, and a trial by jury shall thereupon be had in the same manner as though either of the parties had demanded it."
In reversing the first judgment the court laid stress on the fact that it was founded chiefly on interested testimony, while the defense was substantiated by six witnesses, nearly all of whom were disinterested, who were corroborated to an extent by one of the plaintiff's witnesses. This witness did not testify at the new trial.
Upon the second trial the plaintiff was materially corroborated by Mr. Schlereth, a disinterested witness, who was a passenger on the defendant's car at the time the collision occurred. So that the present record comes before us with the respondent's case considerably strengthened and hardly open to the criticism made against the first judgment.
The jury heard the testimony of the different witnesses and observed their manner of testifying. It was peculiarly appropriate in a case of this kind, where the testimony was conflicting, that a jury should determine whether the story told by the plaintiff's witnesses was truthful or not. We cannot now say that the verdict is against the evidence, and as that is the only objection urged on this appeal the judgment must be affirmed, with costs.
Present: McADAM and BISCHOFF, JJ.
Judgment affirmed, with costs.