O'Connor v. National Ice Co. — 21 N.Y. St. Rep. 907

Majority

p. 907

John O’Connor, Resp’t, v. The National Ice Company of New York, App’lt.

(New York Superior Court, General Term,

Filed January 7, 1889.)

Headnote

1. Bab—When former action for same cause does not bar recovery. The fact that the plaintiff brought an action against another company for the same injuries does not conclude his bringing an action against the defendant. His conduct in the institution, prosecution and discontinuance of that action was matter for the jury.

3. Evidence—When question for jury

Evidence concerning an offer of a sum of money made by the plaintiff to a witness, together with the plaintiff’s explanation is properly submitted to the jury.

3. Practice—Exception how presented,

An exception taken at a trial must be presented upon a case properly made and settled. No relief will be granted upon a mere general exception,

Appeal from judgment in favor of the plaintiff, entered upon the verdict of a jury, and from order denying defendant’s motion upon the minutes for a new trial.

Childs & Hull (.Edward D. McCarthy, of counsel), for app’lt; Alex. Thain, for resp’t.

The action is for personal injuries. The fact that the plaintiff, prior to the commencement of this action, had brought a suit (which was afterwards discontinued), against the Knickerbocker Ice Company for the same injuries, did not stop him from bringing an action against the defendant. At the trial he explained how he came to do it, and in view of the explanations given, the evidence concerning his conduct in the institution, prosecution and discontinuance of that suit, was matter for the jury.

So the testimony concerning an offer of $100,000 made by the plaintiff tó the witness Conway was properly left to the jury, together with plaintiff’s explanation concerning the same, to be considered by them in determining how much weight they would give to plaintiff’s testimony.

The point raised by the defendant as to the calling of the

p. 908

witness Johnson by the trial judge presents no ground for reversal The witness was immediately accepted by the plaintiff as his witness. If, as now claimed, the circumstances under which this was done, and especially the remarks which passed between the trial judge and the counsel for the defendant at the time, tended to prejudice the defendant’s case with the jury, the defendant, upon proof of the fact and a case regularly made and settled, should have moved at special term for a new trial as matter of disoretion. This was not done. No relief will be granted on a mere general exception.

The rulings of the trial judge on the question of damages, taken together, disclose no error under the decision of Ehrgott v. The Mayor, etc., 96 N. Y., 264 . ' The instructions given to the jury upon this point sufficiently guarded the rights of the defendant.

The case, as a whole, discloses no ground for reversal. It was a case for the jury; it was fully and properly submitted to them; and no sufficient reason appears why their verdict should be disturbed.

The judgment and order should be affirmed, with costs.