McCarthy v. Interurban Street Railway Co. — 93 N.Y.S. 548

Majority

p. 548

McCARTHY v. INTERURBAN ST. RY. CO.

(Supreme Court, Appellate Term.

May 2, 1905.)

Headnote

Appeal—Reversal on Facts—Manufactured Testimony.

Where, on a retrial after reversal, plaintiff and her son, who were the only witnesses, supplied testimony for a want of which on the first trial the Appellate Court had reversed the judgment, and had so indicated in its opinion, and flatly contradicted statements made by them with the utmost positiveness on the first trial, when such statements were shown upon the retrial to be contrary to physical facts, and gave.no satisfactory explanation of their omission to give the necessary proof on the first trial,' nor of the contradictions between the testimony as given on the two trials,

p. 549

so that it was apparent that the testimony was given with the desire to fit the facts to the case without regard to truth or consistency, a judgment for plaintiff will be reversed, and the cause remanded for a new trial. „

Appeal from City Court of New York, Trial Term.

Action by Margaret McCarthy against the Interurban Street Railway Company. From a judgment for plaintiff and from an order denying a new trial, defendant appeals. Reversed.

See 88 N. Y. Supp. 388 .

Argued before SCOTT, P. J., and LEVENTRITT and GREEN-BAUM, JJ.

Bayard H. Ames and F. Angelo Gaynor, for appellant.

Hieronimus A. Herold, for respondent.

This appeal is from a judgment entered upon a second trial of the action. A judgment in favor of plaintiff was reversed by this court ( 88 N. Y. Supp. 388 ) for the reason, as stated in the opinion of Mr. Justice Scott, writing for the court, that there was “not a particle of evidence that the plaintiff gave any signal to the conductor, or that he knew, or had reason to know, that plaintiff intended to alight. * * * The plaintiff thus wholly failed to show notice to the conductor, either in the particular manner alleged in the complaint or in any other manner.” On the new trial the plaintiff and ,her son, who were the only witnesses produced by her as to the accident, testified that the conductor was apprised at or near Twenty-Seventh street of her desire to alight at Twenty-Third street; that she was about to get off at Twenty-Fourth street, when the conductor said, “This is not Twenty-Third street; this is Twenty-Fourth street.” Both witnesses also testified that the car came to a full stop at the northwest corner of Second avenue and Twenty-Third street, whereas they had both testified with the utmost positiveness at the previous trial that the car stopped at the southwest corner. The significance of a change in the latter testimony may be found in the fact that both witnesses had placed the scene of the accident near the pillars of the elevated structure which turns east going through Twenty-Third street, whereas it was demonstrable upon the second trial beyond peradventure of successful contradiction that the elevated pillars did not extend to the southwesterly corner of Second avenue and Twenty-Third street. The plaintiff and her son freely admitted that her lawyer ha.d told her after the appeal had been taken that she made a mistake as to the side of the street; “that there was no post on the other side; that the post was on the uptown side.” It is unnecessary to refer to other contradictions, which, standing alone, might be reconcilable with the truth, but, taken in connection with the radical changes in the testimony on most material points, they lead one to conclude that the testimony of the plaintiff and her son, both interested witnesses, was apparently given with the sole desire to fit the facts to suit the case, regardless of truth or consistency.

p. 550

The remarkable resurrection of the dual recollections of plaintiff and her son on the second trial as to facts and incidents tending to show that the conductor had full knowledge of plaintiff’s intention to alight, coming as it does after the comment of the Appéllate Court that failure to show such knowledge on the part of the conductor was ■ fatal to a recovery, makes it necessary to scan this testimony with close scrutiny. No satisfactory explanation of the omission to bring out the important proof necessary for the maintenance of plaintiff’s case on the first trial and of her reawakened recollection and of that of her son after the appeal was made, nor were any reasons, consistent with an honest desire to fairly state the facts with reference to the other changes in testimony, given. On the other hand, the motive for adapting the proofs on the second trial to a successful issue of the case is all-pervading. Bearing false witness is unfortunately too common in courts of justice. It is to be deplored that the criminal law is so rarely successfully invoked in the punishment of this most serious of crimes. When, therefore, it is made apparent that the sacred oaths' of witnesses are recklessly regarded or deliberately ignored, it behooves the court to be vigilant in its efforts to detect the crime which pollutes the administration of justice, and to thwart the unholy scheme which seeks to reap a benefit for one to the hurt of another. One cannot fail to be impressed with the conviction that the vital changes in the testimony were suggested by the opinion of the Appellate Court on the former appeal, and the interests of justice will, I think, best be subserved by reversing this judgment and ordering a new trial.

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