Northam v. Dutchess County Mutual Insurance , 74 N.Y.S. 29 ( 1902 )

McLennan, J.:

The. action was originally tried in January, 1900, before the-court and a jury, and resulted in a judgment in favor of the plaintiff for the value of the property destroyed. Upon, that trial the plaintiff’s assignor testified (in which he was corroborated by other witnesses and it was established to the satisfaction of the jury, notwithstanding the denial by the defendant’s agent) , that after he executed and delivered a general assignment for the benefit of creditors to the plaintiff, he called upon defendant’s agent, informed him of the fact, and stated in substance- that the assignee desired the insurance kept in force and would pay the fees therefor; that the policy was. not in his possession, but was in a safe of which a former partner had possession; that defendant’s. agent stated in substance that the insurance would be kept in force; that it would be all right. The agent, however,- did not make any indorsement on the' policy in respect to the change of interest in the property insured, as required by the terms of the policy, and it was not proven that the agent agreed to make-such indorsement. An appeal from such judgment was taken by the defendant to the Appellate Division, where it was in all things affirmed (51 App. Div. 618), and judgment was entered accordingly. From such judgment of affirmance an appeal was taken-to the Court of Appeals, and the judgment was reversed and a new trial granted, with costs to the appellant to abide event. (166 N. Y. 319.) The Court of Appeals held in substance that the .plaintiff was not entitled to recover, because it was not proven that defendant’s agent “ agreed to make the necessary indorsement and failed to do so, although the policy was within his reach for the purpose.” Upon the new trial, which is now the subject of review, the plaintiff’s assignor, in addition to what he stated upon the former trial, testified in substance that defendant’s agent did agree to make the indorsement upon the policy, and that the agent said it was where he could get it for that purpose.

Upon this trial the plaintiff called several witnesses who corroborated his assignor in the statement that he had a conversation with defendant’s agent at the time alleged by him, relating to the subject of insurance, but no'ne of such witnesses pretend to have heard defendant’s agent say that he would make the indorsement upon the policy or issue a slip to that effect, as testified to by plaintiff’s assignor. It is clear that the addition made by the witness to his former testimony was such and only such as was in effect declared to be necessary by the .Court of Appeals in order to entitle the plaintiff to recover, and it is perfectly clear that such testimony? either in form or substance, was not given by such witness upon the former trial. This fact alone was sufficient, without explanation, to challenge the credibility of the witness and the truthfulness of his story. The defendant’s agent positively denied that any conversation took place between him and plaintiff’s assignor in respe,ct to a renewal or continuance of the insurance in the interest of the assignee, but in addition, and what perhaps is of the most significance as bearing upon the questions involved upon this appeal, is the cross-examination of the witness as disclosed by the record in this case. He gave the testimony upon his direct examination substantially as given by him upon the former trial, except that he added what was declared to be essential by the Court of Appeals. Upon cross-examination he was unable, although repeatedly requested so to do by defendant’s counsel, to point out or state what difference there was between the testimony then given and that given by him upon the former trial.. He could not state, and did not state, in what respect he had changed it, what he had added to it, but when again permitted to recite the whole conversation, he gave it precisely as upon his direct examination, the important words included. Again, we think such examination was of a character to challenge the credibility of the witness and the truthfulness of his story.

Upon all the evidence it cannot be doubted that a question was presented for the determination of the jury, and their verdict must ultimately determine the facts. (McDonald v. Metropolitan Street Railway Co., 167 N. Y. 66.)

We think, however, that, considering all the circumstances and all the evidence, it cannot be said that the learned trial court abused its discretion in determining that the verdict rendered by the jury was against the weight of evidence, and in setting the same aside in th& exercise of such discretion. Whether the judge presiding at a trial by a jury properly or improperly exercises the*power which is given, him by law to set aside a verdict (Code Civ. Proc. § 999) on the ground that it is against the weight of evidence, must be determined from the facts and circumstances of each case. As was said in the McDonald Case (supra) : “ There is no standard by which to determine when a verdict may be thus" set aside. It depends upon the discretion of the court.”

In Lyons v. Connor (53 App. Div. 475), recently decided in the second department, the court said : “ While the learned trial justice could not take the case from the jury ‘ unless the fact is either un contradicted or the contradiction is illusory,’ this did not at all hamper his right to set aside the verdict as against the weight or the preponderance of the evidence. (Luhrs v. Brooklyn Heights R. R. Co., 11 App. Div. 173; Bagley v. Bowe, 105 N. Y. 171.) The justice presiding at the Trial Term is acute, experienced and learned. He saw the witnesses and was not confined, as we are, to the record of their words. If he were convinced that the preponderance of evidence or the interests of justice required him. to set aside the-verdict, he acted properly. (Ferguson v. Gill, 74 Hun, 566,)”

. In Glassford v. Lewis (82 Hun, 46) Martin, J., in writing the opinion of the court, cites with approval the following language: “ It is at all times a grave question for an appellate court to reverse,, on the ground of error, an order made by the trial judge setting aside the verdict as against the weight of evidence.”

In McConnell v. N. Y. C. & H. R. R. R. Co. (63 App. Div. 545), recently decided by this court, although holding that the evidence in that case presented a question of fact to be determined by the jury, and although we did not have the opportunity of seeing the witnesses, but were confined to the record of their words', it was. held that the verdict should be set aside because against the weight of evidence, and the judgment in favor of the plaintiff was reversed, upon that ground.

Many other cases might be cited which conclusively establish. that it was not an abuse of discretion on the part of the learned trial court to set aside the verdict of the jury in this case. (Lund v. Spencer, 42 App. Div. 543; Edall v. New England R. R. Co., 40 id. 617; Williams v. D., L. & W. R. R. Co., 66 id. 336.)

We think the provision in the Order appealed from as to the costs, to be paid by the defendant does not err as against plaintiff.

It follows that the order appealed from should be affirmed, with, ten dollars costs.

Adams, P. J., and Hiscook, J., concurred. Dissenting opinion by Spring, J., in which Williams, J., concurred.