Majority
p. 566Gustave Kahl, Appellant, v. The New York City Railway Company, Respondent. Nos. 13 and 14. (Supreme Court, Appellate Term, April, 1907.)
Headnote
New trial — Grounds — Verdict or findings contrary to law or evidence— Verdict contrary to evidence — Credibility of witnesses.Case — Interpretation — Consideration of matters outside of record in . general — Record on appeal in another action.
Where the plaintiff’s cause of action is supported only by his own testimony but there is no inherent improbability in his story and he is not contradicted, impeached or discredited, the jury may not disregard his testimony and find a verdict for the defendant.
The court in reviewing a judgment upon appeal cannot consider the record in another action unless offered and legally received in evidence in the case under review.
Appeal by the plaintiff from a judgment in favor of the defendant rendered' in the Municipal Court of the city of New York, third district, borough of Manhattan.
Hareourt Bull, for appellant.
James L. Quackenbush, for respondent.
The facts in these cases are substantially the same except as to the date of refusal of transfers as in
p. 567
the case of Kahl v. New York City R. Co., reversed by this court in November, 1906. We are asked, however, by the respondent herein to defer our decision in these cases for the following reasons set forth in the brief of counsel: “ Nine cases of this same plaintiff against the same defendant for similar causes of action were disposed of at one time by Justice Moore. Previous to this in November an appeal was taken in one of the cases and argued at the November Term. In two of these actions the defendant introduced testimony of conductors, substantiated by day cards with a record of the hours at which they made their trips, the number of the car of which they were in charge and the route of the trips, absolutely contradicting the plaintiff as to the times at which he stated and testified from his record that he made the trip, as to the ear numbers and conductors’ numbers. The plaintiff did not bring on all these appeals to be heard, but has selected the ones in which such testimony did not appear, although the justice at the time he determined the case stated that if he found that he had testified falsely in one case he would not credit his testimony in any case as it was uncorroborated. All of the nine cases are appealed to this court. As the justice determined them in the light of the testimony as brought out at that time in all the cases, it is submitted that this court in passing upon the same cases should have before it all the testimony and that" this may be done by presenting the records in the remaining cases before this court at the next term; that if the cases are not brought on for argument at the next term by the plaintiff, the defendant will bring them on.” It will be seen that no claim is made that all the cases were tried as one or that the testimony offered and received in the two cases referred to was by consent or otherwise made a part of the other cases, and we are asked to take the record of facts proven in those two cases as a basis for determining cases which do not contain those facts in evidence. This we cannot do. Each record must be complete in itself, and the record in one action cannot be considered in another unless the same has been regularly offered and legally received in evidence in the case in which it is sought to be made a part
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thereof. There is no inherent improbability in the plaintiffs story; he was not contradicted, impeached or discredited. Lewis v. New York City R. Co., 50 Misc. Rep. 535 .
Present, Gildersleeve, Giegerioh and Erlaeger, JJ.
Judgment reversed and new trial ordered, with costs to appellant to abide event.