Morris v. Second Avenue Railroad — 21 N.Y. Super. Ct. 679

Majority

p. 679

Peter Morris, Plaintiff and Appellant, v. The Second Avenue Railroad Company, Defendants and Respondents.

Headnote

1. To entitle an appellant to a reversal, on the ground that the finding of the Referee, before whom the action was tried, is against the weight of evidence, it is not enough that he satisfies the appellate Court that, upon the testimony as it appears in the printed case, assuming that the witnesses on his behalf are entitled to full credit, they would have come to a different conclusion from that of the Referee. His case must be very clear and substantially without contradiction; else the finding of the Referee, like the ' verdict of a Jury, will be held conclusive.

2. This rule applied in support of the finding of a Referee in favor of the defendants, upon conflicting evidence on an issue of payment.

(Before Bosworth, Oh. J., and Woodruff, J.)

Heard, November 16;

decided, December 7, 1861.

Appeal from a judgment entered in favor of defendants on the report of Edward P. Coles, Esq., Referee, before whom the cause was tried.

The plaintiff sued to recover for services rendered to defendants, and money paid for them in the construction of then road. The defense was payment. It appeared

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upon the trial, that the plaintiff, who had done work for the defendants under a special contract, had also done extra work prior to September, 1853, and it was for compensation for such work that he now sued.

The defendants produced plaintiff’s receipts given for various sums and at various times, in and subsequent to September, 1853, and expressed to be in full. The plaintiff was an illiterate man, unable to read, and, when examined before the Referee, he testified, that when required by Mr. Pearsall, defendants’ President, to give such a receipt, he objected; but that Pearsall insisted, and promised that he should be paid for any extra work. And plaintiff testified, that he had never received any payment for extra work. Pearsall, being sworn, testified, that he was not present when the receipt to which the plaintiff alluded was given, and that he never had any such conversation. The defendants also produced a receipt signed by plaintiffs, which was for extra work, of the same nature as that for which he sued.

The Referee found that the plaintiff had rendered services, but had been paid in full.

The plaintiff excepted to the report, and from, the judgment entered thereon took this appeal.

A. J. Willard, for plaintiff, (appellant,) insisted that the Referee erred in his conclusion of fact that the plaintiff had been paid in full; and the judgment should be set aside and a new trial ordered.

Waldo Hutchins, for defendants, (respondents,) on a review of the evidence, urged that the defense was fully made out, and that the evidence being conflicting and its weight not being against the report, the judgment should be affirmed.

The sole ground of this appeal is, that the finding of the Referee before whom the action was tried, is against the weight of the

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evidence. To entitle an appellant to a reversal on this ground, it is not enough that he satisfies the appellate Court that upon the testimony as it appears in the printed case, assuming that the witnesses on his- behalf are entitled to full credit, they would have come to a different conclusion from that found by the Beferee. His case must be very clear and substantially without contradiction, else the finding of the Beferee, like the verdict of a Jury, will be held conclusive.

The stringent rules governing the subject have been so often .stated that it is not necessary to repeat them here. Hardly a volume of the reports is published that does not contain a statement of these rules, as acted upon in this Court or in the Supreme or other Courts in this State. Some have gone so far as to decide that if there is any conflict of testimony upon the matters in issue, the finding of the Beferee should not be disturbed. Others, that the preponderance of the evidence in conflict with the finding, should be such as to warrant the belief that some mistake was made by the Beferee or that he was partial, prejudiced or biased, or governed by some consideration which ought not to have influenced his decision. Others state that to warrant a reversal in such case, the testimony should be such at least that a verdict of a Jury given for the prevailing party, under proper instructions from the Court, would be set aside.

We have examined the testimony as it appears before us. Taking the testimony of the plaintiff himself as entitled to full credit, and the corroborating testimony of Smith and others as reliable, the plaintiff certainly made out a case entitling him to recover. But, on the other hand, the testimony of Pearsall, the President of the defendants, (at the time of the transactions in question,) directly contradicts both the plaintiff and Smith in very material particulars. Six receipts, signed by the plaintiff himself, are in direct conflict with the claim here set up by him. Other receipts signed by him are in flat contradiction of his explicit statement under oath on the trial.

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The lapse of time after the claim is alleged to have arisen, before suit brought,—The death of the defendants’ Treasurer, by whom the payments were made to the plaintiff,— and other circumstances of suspicion, in’the want of entire harmony between the testimony of the plaintiff and his own witnesses, might properly have some influence favorable to the defendants.

Under these circumstances, the observations made in Hall v. Morrison, ( 3 Bosw., 526 ,) apply with singular force to the case before us: “The preponderance of the testimony on either side is not such as to warrant a presumption that the finding of the Beferee is not the conviction of an upright mind, uninfluenced by any consideration that is foreign to the case, or that his findings were the result of any mistake, or of any error in the application of the rules of law to the evidence. In such a case it is settled that the report of a Beferee cannot be set aside. He has the witnesses before him. He not only hears their words, but observes their manner of testifying. He may have been conscious of reasons for doubting the accuracy of the defendant’s,” (or plaintiff’s,) “testimony, which do not and cannot appear upon the printed case. Under such circumstances his report upon the facts must conclude us; it stands as the verdict of a Jury.”

The judgment must be affirmed.