Fines v. Sillery — 58 N.Y. St. Rep. 461

Majority

p. 461

Michael Fines, Resp’t, v. Charles Sillery et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed December 1, 1893.)

Headnote

Tbial—Plaintiff’s case.

Plaintiff’s case may be established by the cross-examination of defendant’s witnesses.

Appeal from a judgment in favor of plaintiff, and from an order denying a motion for a new trial.

p. 462

William S. Cogswell, (Louis Malthaner, of counsel), for app’It; William J. Marshall, for resp’t.

Appellant urges that the testimony introduced by plaintiff is insufficient to sustain the judgment. It must be admitted that, when plaintiff rested the case, it was a close question. But the trial judge wisely “ heard the other side,” and the cross-examination brought out facts which established plaintiff’s cause of action. It thus appeared that the Italian whose blunder caused the injury was on that day employed at this work for the first time; that defendant made no inquiries about him—knew nothing of his fitness, having merely notified the “ patron ” how many laborers were needed. And the foreman, upon whose directions, only, the stone should have been lowered, testified that he gave no such order. After this evidence, there is no-serious question of defendant’s liability.

Judgment affirmed, with costs.

All. concur.