Wiener v. New York Central & Hudson River Railroad — 8 N.Y. St. Rep. 403

Majority

p. 403

Eugene Wiener, Resp’t, v. The New York Central and Hudson River Railroad Co., App’lts.

(New York Common Pleas, General Term,

Filed June 27, 1887.)

Headnote

Appeal—When court will affirm, though it has great doubts op TRUTH OP TESTIMONY.

Though the appellate court may have very great doubts as to the truth of testimony, yet where there is no documentary evidence that contradicts ■ the witness, and his testimony is not absolutely uncredited or unreasonable, and considering the opportunity that the justice had of seeing the witness and estimating his character gives him great advantage in judging his veracity, it will defer to his decision and affirm the judgment.

Appeal from a judgment of the district court of the city of New York against the appellants. The action was brought to recover damages for failure to deliver a box containing music and music stands of a concert troupe at Tarrytown by the same train upon which the plaintiff and his associate performers traveled. On the first trial the plaintiff recovered a judgment which, on appeal to this court, was reversed and new trial ordered.

By the testimony it appeared that the plaintiff engaged to give an instrumental musical concert at Tarrytown. He purchased of the defendant tickets to Tarrytown and shortly before the time for the departure of the train went to the baggage-room where he met Richard Pachne, who had brought to the baggage-room a box containing the music and the music stands of the performers, which box was lettered on. the top, “New York Philharmonic. Club.” The tickets were exhibited and the box was checked to Tarrytown.

By the error of '••the defendants the box was sent to Poughkeepsie, and when plaintiff arrived at the place in Tarrytown where the concert was to be given the audience had to be dismissed by reason of the absence of the box and its contents.

The opinion of the general term, written on the reversal of the first trial, contained the following: “There is no evidence that defendants knew the plaintiffs were to give a concert, or that the box contained music, or that the non-arrival of the box by a particular train would prevent the plaintiffs from giving their concert and earning the money that was to be paid them for their services as musicians. In an action for a breach of a contract, only such damages can be recovered as were within the contemplation of the parties when the contract was made.”

On the second trial plaintiff testified that he “told the

p. 404

baggage-master he must send the box by the next train to Tarry town, as we need the music for concert to night.”

This was denied by Sutton, the baggage-master, who testified as to checking the box.

Plaintiff denied that the witness Sutton was the man who checked the box. Richard Pachne, who brought the box to the depot, could not remember what was said when it was checked.

Frank Loomis, for app’lt; Edward P. Wilder, for resp’t.

We have very grave doubts as to the truth of the plaintiff’s testimony, but it was believed by the justice in the court below. The witness Pachne would not confirm his statement as to the conversation with the baggageman, and his testimony stands uncorroborated. There is always room for suspicion where a witness at a second trial comes prepared to fill all gaps, to supply all dedeficiencies, and to prove the very point upon which the decision turns, and which, at the first trial, he did not prove at all. But the opportunity that the justice had of seeing the witness and estimating his character gave him a great advantage in judging his veracity; and as there is no documentary evidence in the case that contradicts the witness, and, as his story is not absolutely uncredited or unreasonable, we feel it our duty to defer to the decision of the justice, and to affirm the judgment.