Coyle v. Metropolitan Life Insurance — 54 N.Y. St. Rep. 792

Majority

p. 792

William J. Coyle, Resp’t, v. The Metropolitan Life Insurance Co., App’lt.

(New York Common Pleas, General Term,

Filed October 2, 1893.)

Headnote

W itness—Interested.

Where a result of the trial adversely to the plaintiff would tend to convict his wife of a fraud on .defendant, she is a witness interested in the event of the ac-ion, and her testimony is not conclusive, but is subject to-discredit, though not directly contradicted, and though her general character for truth and veracity is not impeached.

Appeal from a j udgment for plaintiff rendered in the district, court in the city of Nov York for the first judicial district.

Action by the beneficiary to recover the sum which defendant pursuant to the terms of its policy of life insurance agreed to pay upon the death of the insured.

Henry J. Hemmens, for resp’t; Wm. H. Arnoux, for app’lt.

Plaintiff’s right of recovery in this action was wholly dependent upon the degree of credibility which the trial justice in the proper exercise' of his judicial discretion saw fit to attach to the testimony of plaintiff's wife. She was a witness interested in the event of the action, since the result of the trial adversely to plaintiff would tend to convict her of an attempted fraud upon the defendant. Her testimony, therefore, was not conclusive, but was subject to discredit though she may not have been directly contradicted and her general character for truth and. veracity may not have been impeached. That the consideration-of the above was disregarded by the justice on the trial of this: action, and that the judgment appealed from proceeded from facts assumed and of which there was no .evidence, is too apparent to admit of dispute. Justice requires that there should be a new trial.

Judgment reversed, and new trial ordered, with costs of this appeal and of the court below to the party prevailing on the-new trial.

Bookstaver and Bischoff, JJ., concur.