Park & Tilford v. Metropolitan Street Railway Co.

Majority

p. 249

PARK & TILFORD v. METROPOLITAN ST. RY. CO.

(Supreme Court, Appellate Term.

June 22, 1903.)

Headnote

1. Appeal—Findings op Fact—Review.

A finding of fact by the trial court in an accident case will not be disturbed, though but one witness testified as he found, while several testified the other way; he basing his belief in the credibility of the witnesses on their demeanor.

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

Action by Park & Tilford against the Metropolitan Street Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.

McCurdy & Yard, for appellant.

Henry A. Robinson, for respondent.

That “the decision of the trial justice was contrary to the evidence, and the weight of the evidence,” is'principally the point upon which the plaintiff rests its appeal from the determination in favor of the defendant in an accident case, in which the veracity of the witnesses for their respective sides was passed upon by the learned trial justice, who, as he aptly says, reached the conclusion that the evidence preponderated in favor of the defendant, not in regard to the quantity of the testimony, nor the number of witnesses, but in reference to the quality of the evidence; adding that no one who heard the testimony of the only witness called for the defendant, and observed his demeanor on the stand, could doubt the man’s veracity, while, on the other hand, the testimony of most of the witnesses for the plaintiff was given in a halting and unsatisfactory manner, and did not appeal to the intelligence of .the court. The judgment should be affirmed.

Judgment affirmed, with costs to the respondent. All concur.