Wilcox v. Selleck ( 1895 )

HARDIN, P. J.

A careful perusal of the evidence leads to the conclusion that there was some evidence given upon the trial, which, if accredited by the jury, would have warranted a verdict in favor of the defendant. Several witnesses were called, who gave testimony which, if accepted entirely as given, would warrant us in sustaining the verdict as directed. The plaintiff and his father were so situated with reference to the controversy that the jury would have been authorized to disbelieve their testimony in part or in whole. We think the question of their credibility was for the jury, and that a case was presented, which ought to have been submitted to the jury, as to whether the ownership of the property at the time of the levy by the sheriff on the execution against Eugene R. Wilcox was in Eugene R. Wilcox, or whether it was in the plaintiff. Elwood v. Telegraph Co., 45 N. Y. 549; Longyear v. Insurance Co., 20 Wkly. Dig. 165; Carbon Works v. Schad, 38 Hun, 71; Dean v. Van Nostrand (N. Y.) 4 N. E. 134; Roseberry v. Nixon, 58 Hun, 122, 11 N. Y. Supp. 523; Quock Ting v. U. S., 140 U. S. 422, 11 Sup. Ct. 733, 851; Goldsmith v. Coverly (Sup.) 27 N. Y. Supp. 116. The rule seems to be quite well settled that a jury is not bound to believe an improbable statement made by a witness, or a statement made by a witness who has an interest in the question at issue, and that juries-are at liberty to scan, doubt, and question statements made by parties in interest in a suit, as well as their near relatives, who are interested in the success or defeat of the action in which they are called upon to testify. Evidence was given by the witness Stephenson and the witness Blake, who testified to a conversation in the presence of the plaintiff which, to a considerable extent, tended to support the theory of the defendant, that, at the time of the levy, Eugene R. Wilcox had an interest in the property levied upon. We think the judge at the trial committed an error, in refusing to submit the question of fact to the jury. Powers v. Silberstein, 108 N. Y. 169, 15 N. E. 185; McCann v. Railroad Co., 117 N. Y. 505, 23 N. E. 164.

Judgment reversed, and a new trial ordered, with costs to abide the event. All concur.