Berus v. New York City Ry. Co. — 101 N.Y.S. 748

Majority

p. 748

BERUS v. NEW YORK CITY RY. CO.

(Supreme Court, Appellate Term.

December 11, 1906.)

Headnote

Witnesses—Credibility—Effect oe Inaccurate Testimony.

Plaintiff’s corroborated and uncontradicted testimony that the conductor of a street car refused him a transfer is not rendered improbable, so as to authorize the court to disregard it, by the fact that, while he testified that he saw a stenographer drawing up the complaint, the complaint is a mimeograph copy, that is, a form of complaint applicable in a general way to the particular class of cases, requiring merely to be

p. 749

properly filled out; it being reasonably inferable and entirely reconcilable with his statement on the subject that he may have seen the stenographer filling out such blank.

Appeal from Municipal Court, Borough of Manhattan, Ninth District.

Action by Herman Berus against the New York City Railway Company. From a judgment for defendant, plaintiff appeals. Reversed, and new trial granted.

Argued before GILDERSLEEVE, FITZGERALD, and DAVIS, JJ.

Washburn & Sickels (Charles H. Herdt, of counsel), for appellant.

James L. Quackenb-ush, for respondent.

On May 12, 1906, plaintiff boarded one of defendant’s cars going north at Tenth street and Sixth avenue, paid his fare, and immediately asked the conductor for a transfer to the Twenty-Third Street Crosstown Line. A transfer was not given him, and he rode to Twenty-Third street and again asked for a transfer, and the conductor refused to give him one. He subsequently boarded a crosstown car at Twenty-Third street, and explained to the conductor of that car the refusal of the conductor on the uptown Sixth Avenue car to give him a transfer. This conductor demanded another fare, which plaintiff paid. C. L- Rowe corroborates plaintiff’s statement as to the refusal of the conductor to give the transfer and as to the payment to conductor on the Twenty-Third Street Crosstown Line.

As regards plaintiff’s statement that he was refused a transfer, it stands corroborated and absolutely uncontradicted. The only improbability suggested is claimed to be inferable from the fact that the complaint in the record is a mimeograph copy and tends to refute his statement that he saw a stenographer drawing up that complaint. A mimeograph complaint may be described as a form of complaint applicable in a general way to a particular class of cases, and is therefore nothing more than a blank, which, before it can be of service in a special instance, must be properly filled out. It is reasonably infer-able and entirely reconcilable with plaintiff’s evidence on this subject that he may have seen the stenographer filling out such blank. Moreover, his examination in chief showed a situation, as was said in Lewis v. N. Y. City Ry. Co. (Sup.) 99 N. Y. Supp. 462 , “so common and so often before the court that its mere narrative carries with it an atmosphere of conviction of its truth.” Applying, therefore, the rule in Lewis v. N. Y. City Ry. Co., supra, judgment must be reversed, and new trial granted, with costs to appellant to abide the event.

Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.