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Roseberry v. Nixon

11 N.Y.S. 523 Court N.Y. Gen. Term Decision date 1890-10-24 English

Delivered by Van Brunt, P. J.

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p. 523
Roseberry v. Nixon.
(Supreme Court, General Term, First Department.
October 24, 1890.)

Headnote

1. Harmless Error.
Remarks made by the judge to counsel, which he expressly instructs the jury to disregard, are not ground for reversal on appeal.
2. Directing Verdict.
The only witness to prove the case of a defendant was her husband and agent, who was interested in the success of the defense. Held that, although his testimony was not contradicted, the court properly refused to direct a verdict for defendant thereon.
Appeal from circuit court, New York county.
Action by Andrew Roseberry against.Kate M. H. Nixon. From a judgment for plaintiff entered on a verdict, defendant appeals.
Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
E. Bartlett, for appellant. Cornelius Fiske, for respondent.

This appellant claims a reversal of this judgment upon two grounds: First, because the court refused to direct a verdict; and, second, because of some remarks which the court made in submitting the case to the jury. The last objection is clearly untenable, because the judge expressly told the jury to disregard what he had said to counsel, and that which is objected to formed no part of his instructions to the jury.

The court was right in refusing a direction. It is undoubtedly true that the general rule is that where a witness testifies distinctly and positively to a fact, and is uncontradicted, his testimony should be credited; but this rule is subject to many qualifications. One is that, where a witness may be biased by his interest, the case is one for the jury. Elwood v. Telegraph Co., 45 N. Y. 549 . The same principle has been held in numerous other cases. This interest need not necessarily be pecuniary. It may arise from the relationship of the witness to one of the parties. The only witness to prove the defendant’s case was the husband and agent of the defendant having an inter

p. 524
est in the success of the defense, in fact a party to it. The court was bound, under this condition of the evidence, to submit the question to the jury. The judgment appealed from should be affirmed, with costs. All concur.

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