Hyperlawhypertext legal database Craswell v. New York & S. B. Ferry & Steam Transportation Co. 59 N.Y.S. 554

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Craswell v. New York & S. B. Ferry & Steam Transportation Co.

59 N.Y.S. 554 Court N.Y. App. Term Decision date 1899-07-26 English

Decision Majority — FREEDMAN, P. J. · Concurring — MacLEAN, J.

Contents

Majority

p. 554
(28 Misc. Rep. 487.)
CRASWELL v. NEW YORK & S. B. FERRY & STEAM TRANSPORTATION CO.
(Supreme Court, Appellate Term.
July 26, 1899.)

Headnote

1. Appeal—Review—Conelictino Evidence.
On appeal from the general term-of the city court of New York to the appellate term of the supreme court, the weight of evidence is not open to review.
2. Assault—Question por Jury.
In an action for assault, where plaintiff’s testimony, if believed, would entitle her to a verdict, and the witnesses for the defense are all employes of defendant, the case is properly submitted to the jury.
Appeal from city court of New York, general term.
Action by Euphemia Craswell against the New York & South Brooklyn Ferry & Steam Transportation Company. From a judgment for plaintiff, affirmed by general term ( 57 N. Y. Supp. 827 ), defendant appeals.
Affirmed.
Argued before FREEDMAN, ,P. J., and MacLEAN and LEVEN-TRITT, JJ.
J. Archibald Murray, for appellant.
Blandy, Mooney & Shipman, for respondent.

This action was brought to recover damages for an assault alleged to have been committed upon the plaintiff by one of the defendant’s employés while she was proceeding to take passage upon one of the defendant’s ferryboats at the foot of Thirty-Ninth street, on September 6, 1895. An examination of the record in this case does not disclose, nor does the appellant claim, that any error was committed in the reception or exclusion of. evidence. The brief of the appellant is largely devoted to a discussion of the weight that should be given to the testimony, but upon an appeal

Concurrence

p. 555
from the general term of the city court to the appellate term the weight of evidence is not open to review. Carney v. Reilly, 18 Misc. Rep. 11 , 40 N. Y. Supp. 1123 . In the case at bar the plaintiff testified to facts which, if believed by the jury, entitled her to a verdict. It is true, she was the only witness in her own behalf as to the actual facts regarding the assault. The witnesses for the defendant, however, were all employés of the company. There was' sufficient testimony to require the submission of the case to the jury upon the disputed questions of fact, and there appears to have been no error committed upon the trial to warrant the interference of this court. The judgment must therefore be affirmed.

Judgment affirmed, with costs.

LEVENTBITT, J., concurs.

I concur in the result, but, under Claflin v. Watch Co., 7 Misc. Rep. 668 , 28 N. Y. Supp. 42 , and Schwinger v. Raymond, 105 N. Y. 648 , 11 N. E. 942 ,. prefer not to subscribe to the statement taken from Carney v. Reilly, 18 Misc. Rep. 11 , 40 N. Y. Supp. 1123 .

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