Fines v. Sillery — 80 N.Y. Sup. Ct. 549

Majority

p. 549

Michael Fines, Respondent, v. Charles Sillery and Another, Appellants.

Headnote

Establishment of the plaintiff’s case by the mvss-examination of the defendant? witnesses.

Upon the trial of an action, when the plaintiff rested his case, it was a close question whether or not the testimony introduced hy him was sufficient to sustain a judgment in his favor, hut the trial court denied a motion to dismiss the plaintiffs complaint, and, on the cross-examination of the defendants’ witnesses, facts were brought out which established the plaintiff’s cause of action.

Held, that a judgment in favor of the plaintiff should be affirmed.

Appeal by the defendants, Charles Sillery and another, from a judgment of the City Cojirt of Mount Yernon in favor of the plaintiff, entered in the office of the clerk of the City Court of Mount Yernon on the 30th day of March, 1893, upon the verdict of a jury for $300, and also from an order entered in said clerk’s office on the 22d day of' March, 1893, denying the defendants’ motion to set aside the verdict and for a new trial.

Upon the trial, after the plaintiff rested his case, the defendants moved to dismiss the complaint, which motion was denied.

Wm. S. Cogswell and Louis Mattha/uer, for the appellants.

Wm. J. Marshall, for the respondent.

Appellants urge that the testimony introduced by plaintiff is insufficient to sustain the judgment. It must be admitted that when the 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

p. 550

that day, employed at this work for the first time; that defendants 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 direction only the stone should have been lowered, testified that he gave no such order. After this evidence, there is no serious question of defendants’ liability.

Judgment and order denying new trial affirmed, with costs.

Barnard, P. J., and Dykman, J., concurred.

Judgment and order denying new trial, affirmed, with costs.