Thornton v. Rogers

for such copy. Issue was joined by an answer and an amended answer of the defendant, and he made an offer of judgment for $225, which was not accepted. At the opening of the trial the plaintiff was permitted to amend his complaint by inserting an allegation of a special contract of the defendant, by Mr. George B. Wellington, his counsel in the legislative proceeding to pay the plaintiff, for the copy of the minutes to be furnished to him, at the rate of twenty cents a folio. To maintain the affirmative of the issue thus made, the plaintiff gave no evidence, except by his own testimony. He testified that the investigation was commenced in the latter part of January, 1890 ; that, after the first two or three sittings of the committee, Mr. Wellington applied to him to be furnished with a copy of the minutes ; that he agreed to furnish them at twenty cents a folio ; and that he did so,—having a copy of the testimony taken up to the time transcribed, and furnished to Mr. Wellington,—and after that furnished him with copies as the investigation proceeded. He denied any recollection or belief that he ever received any letter from the defendant himself on the subject of furnishing the copy to Mm or his counsel, and he reiterated more than once his statement of the manner in which the copy was furnished,"—once in the following language, on cross-examination f “ Yes, sir; I say that I furnished the testimony along in detached parts,—a session at a time as a rule.” The testimony thus given was met on the part of the defendant by the testimony of Mr. Wellington, who positively denied that he ever applied to the plaintiff for a copy of the testimony ; that he ever promised to pay him twenty cents a folio for such a copy, or ever had any conversation with him on the subject. By the testimony of the defendant, to the effect that in the latter part of March, and after the case for the contestant was closed, he wrote a letter to the plaintiff, informing him that Mr. Wellington desired a copy of the stenographer’s minutes, for the purpose of making his brief for argument, and that if he (the plaintiff) had prepared copies of the minutes, and would send one of them to Mr. Wellington to be used for the purpose mentioned, it would be returned to the committee, with the brief, at the close of the case ; that the next day he received a letter in answer from the plaintiff. The letter of the plaintiff was produced and put in evidence. It was as follows :

“ Albany, March 21, 1890.

“ Gen. James 0. Rogers—Dear Sir : Your favor of yesterday is at hand. I will have prepared, and send to Mr. Wellington, a copy of the proceedings thus far taken, as you request. Yours truly,

[Signed] “George H. Thornton.”.

The foregoing statement contains the substance of the material evidence in the case, upon the submission of which to the jury a verdict was rendered in favor of the plaintiff. The defendant moved for a new trial upon the ground, among others, that the verdict was contrary to the evidence, and his motion was denied.

We think the motion was well founded, and that its denial was error. The plaintiff held the affirmative of the ■ issue, and was

bound to suppoi’t it by a fair preponderance of the evidence, or fail of a recovery. To that purpose his own testimony stood alone. It was uncorroborated by any evidence in the case, either direct or presumptive. He was interested in the result of the action, to the full extent of the recovery sought. Be was fully contradicted,' upon the question directly in issue, by the testimony of a disinterested witness, and by the well-nigth conclusive presumption to be drawn from his own letter to the defendant. It is not easily credible that he should have written that letter in answer to the letter of the defendant, the receipt of which he acknowledges, if he had already concluded a bargain with the defendant’s counsel to furnish him copies of the minutes at a price agreed upon, and especially if, as he repeatedly testifies he had already been engaged for nearly two months in furnishing the counsel with those copies, from day to day, of the sessions of the committee. We understand the reluctance with which a judge at the circuit, who has once submitted a case to the jury, interferes to set aside the verdict, when it is rendered in response to such submission, but that some times it may be his duty to do so cannot be doubted, and this even in a case where his denial of a motion for a nonsuit was not error ; for, as was said by Allen, J., in Colt v. Sixth Ave. Railroad Co., 49 N. Y. 71 , the evidence may be sufficient in law to sustain a verdict, although so greatly against the apparent weight of evidence as to justify the granting of a new trial. See, also, Adsit v. Wilson, 7 How. 64 , 66; Smith v. Aetna Life Ins. Co., 49 N. Y. 211 ; Mulligan v. N. Y. C. & H. R. R. Co., 11 N. Y. Supp. 452 ; 33 St. Rep. 534 . It is manifest that the present is a strong case for setting aside the verdict. The contradiction of the plaintiff was not by the other party interested, but by a disinterested witness, and by the letter of the plaintiff himself. It is impossible to say that this verdict is supported by a fair preponderance of the evidence. The contrary is plainly the case, and the motion for a new trial should have been granted on that ground, if no other.

Judgment and order appealed from reversed, and a new trial granted, with costs to abide the event.

Lewis, J., concurs. Haight, J., dissents.