Hogle v. New York Central & Hudson River Railroad — 12 N.Y. St. Rep. 415

Majority

p. 415

Jacob E. Hogle, Resp’t, v. The New York Central and Hudson River Railroad Company. App’lt.

(Supreme Court, General Term, Third Department,

Filed December, 1887.)

Headnote

Evidence—What does not justify a reversal of judgment.

Where a fact is sufficiently proven by circumstances, a judgment based thereon will not be reversed because evidence corroborative of the fact, which has been admitted as res gestee may not be properly admissible as such.

S. W. Jackson, for app’lt; D. M. Chadsey, attorney; A. P. Strong, of counsel, for resp’t.

It does not clearly appear from the case-that the testimony of the plaintiff as to what the railroad workmen told him, respecting the place whence they removed the cow, was the relation of a past transaction. If while in the act of placing the cow within the plaintiff’s lot, they said in substance that they took her from the railroad tracks, such declaration may, perhaps, be regarded as-part of the act of removal itself, while still in process of performance.

We do not think we ought to reverse because this piece-of evidence, which merely corroborated the fact as indicated by the circumstances, may possibly be upon the verge of the outside of the rule suggested above.

The case in other respects is like Graham v. President, etc., of D. and H. C. Co. (12 N. Y. State Rep., 390), decided this term, and is affirmed for the reasons stated in that case.

Judgment affirmed, with costs.

Fish and Parker, JJ., concur.