New York Small Stock Co. v. Third Ave. Railroad

The plaintiff sues to recover damages caused by the alleged negligence of defendant. When the action was before the general term of the court of common pleas on the prior appeal, the judgment, which was in favor of the plaintiff, was reversed, and a new trial ordered, with costs to the appellant to abide the event. See 13 Misc. Rep. 276 ; 68 St. Rep. 16 . The sole ground of reversal was that the judgment was against the weight of evidence, and the same ground is urged on this appeal. The first trial was had before the justice without a jury. Upon the new trial, the justice, of his own motion, impaneled a jury, which found in favor of the plaintiff. Defendant’s counsel objected to a trial by jury, on the ground that, the first trial having been had without one, the award of a new trial meant that it should be had in like manner. This does not necessarily follow. The consolidation act (section 1372), as amended by Laws 1891, c. 378, among other things, provides:

“When an issue of fact has been joined in an action or special proceeding, and a trial by jury has not been demanded, the justice may in his discretion, at any stage of the action or proceeding, direct that a trial thereof be had by jury, and a trial by jury shall thereupon be had, in the same manner as though either of the parties had demanded it.”

In reversing the first judgment, the court'laid stress on the fact that it was founded chiefly on interested testimony, while the defense was substantiated by six witnesses, nearly all of whom were disinterested, who were corroborated to an extent by one of the plaintiff’s witnesses. This witness did not testify at the trial. Upon the second trial the plaintiff was materially corroborated by Mr. Schlereth, a disinterested witness, who was a passenger on the defendant’s car at the time the collision occurred So that the present record comes before us with the respondent’s case consider