Ynguanzo v. Salomon , 3 Daly 153 ( 1869 )

By the Court.

Brady, J.

The complaint contains the statement of a fact which, if proved, would be sufficient to constitute a cause of action. It may be regarded as a mixed question of law and fact, and assuming it to be such, then the allegation of it was sufficient without further elaboration, to put the defendants to their answer. It was not necessary to set out in detail the various facts and circumstances upon which the plaintiffs relied to establish the complicity of the defendants. It would be substantially alleging the evidence which is not, and never has been, required in pleadings. In cases like this, in which a combination for fraudulent purposes is relied upon, it is sufficient to state the fact of the combination, its object, and its accomplishment to the injury of the plaintiff. The motion, therefore, to dismiss the complaint upon the ground that it did not state facts sufficient to constitute a cause of action was properly denied. The written depositions of Chamberlain andBrod, the reception of which was objected to, were properly received under the orders of the court, providing that they might he read as a condition, of opening defaults taken against the defendants. The other exceptions to evidence admitted, taken by the defendants, are unavailing. The testimony admitted was properly received as part of the res gestee, or upon cross-examination of the defendants’ witnesses, or in answer to the defendants’ developments on cross-examination, when the examination in chief was resumed. None of them have any materiality or importance. No evidence on the part of the defendants, offered by them, was rejected. The exceptions on the part of the plaintiffs seem to be more numerous, and the examination of the case shows that the defendants’ rights were fully preserved in the application of the rules of evidence. This general statement and ruling is all that these exceptions on the part of the defendants require from the court. The principal exceptions are to the charge, and to the refusal of .the judge to charge certain requests to be considered. The defendants excepted to that part of the charge wherein he instructed the jury that they might find for the plaintiffs against the defendants, on the evidence of an alleged accomplice, even though unsupported and uncorroborated. The exception was not well taken. (Dunn v. The People, 29 N. Y. 523.) The instructions to the jury in relation to the weight of such evidence, and the great caution which should be exercised in considering its value and credibility were ample and exhaustive, but the right of the jury to place their verdict upon it, if necessary, cannot be doubted. The evidence of Chamberlain was not, however, wholly unsupported. There are facts and circumstances disclosed by the testimony given on the trial, which, though insignificant, abstractly considered, yet, when grouped together, have some bearing upon the averred participation in Chamberlain’s fraud, by both the Salomons. The defendants also excepted to the criticisms of the judge upon the affidavit of Chamberlain, made, on the 10th of November, 1866, and to the interpretation, construction, and effect of his charge upon that affidavit. These exceptions are valueless. The opinion of the judge is not the subject of review, unless it appears that the expression of it prejudiced the appellant. Such is not the case here. The -criticism, upon the affidavit was not only justifiable, but decidedly proper. Chamberlain had undertaken to destroy the force of evidence already given by him; but the retraction was limited, and not broad enough to cover the statements previously made. The question for the jury, under the circumstances, was, which of the two statements was true, if either ; and any exposition of the interpretation, or effect of either as against the other, was an aid to the jury in their estimation of them. The whole question of the effect and value of the testimony, and of the consideration to be giyen to Chamberlain’s .testimony, were distinctly referred to the jury, however, and with full instructions, as already suggested. It follows, from the views herein expressed, that the request to instruct the jury to reject and exclude from their consideration the testimony of Chamberlain, was properly refused. In disposing of this appeal, it may not be improper to say that, on the testimony of Chamberlain, there can be no doubt that the plaintiffs were the victims of a combination in which the defendants participated, and that without that testimony, the action could not have been maintained, if the plaintiffs exhausted all their evidence. Whether he should be believed or not, was not for the court to determine. It was eminently proper that his testimony, which, in some respects, was in conflict, should be scrutinized with great .care and deliberation, and this the jury were told to do, and they believed that his statements originally made were true. On .-an examination of the cáse, it does not appear that we should reject the verdict of the jury. Fraud is the most subtle of legal elements, and is frequently -developed by comparatively trifling facts and circumstances which, isolated, amount to little, but when united by intellectual power, present the charge made clearly and beyond doubt. It sometimes happens that the conduct of the persons charged, while upon the stand—the manner of giving their testimony, exhibiting as it may the frankness and fairness of honesty, .have an important bearing upon the defence of defendants. These elements may have, in some respects, contributed to the plaintiff’s success. We cannot sa,y that they did; but they may Iiave done so, and th.e plaintiff’s case is not so weak as to justify us in assuming that, even without such contributing advantages, they should not have succeeded. The judgment should be affirmed, therefore, inasmuch as the questions of fact were found in the plaintiff’s favor, and the evidence upon, which such finding is based is sufficient to sustain it.

Judgment affirmed.