Goldenberg v. Hindle ( 1931 )

EROST, J.

Heard on plaintiff’s motion for new trial after verdict for plaintiff in the sum of $5.35.

This is a suit brought to recover on two claims against the defendant in her capacity as administratrix of the estate of her late husband.

The jury found in favor of the plaintiff on the first claim but against him on the second.

The plaintiff was in charge of a store belonging to the Great Atlantic and Pacific Tea Company and claimed to have made a loan to David H. Hindle, who was a plumber. Plaintiff testified that Hindle came into his store and asked for a loan of $300; that he had $200 in his pocket and obtained '$100 from the bank, all of which he gave to Hindle; that he took from Hindle no evidence of the loan; that ■a few days later Hindle died. The plaintiff produced a paper from the bank showing that he drew from his account the sum of $100 on April 25, 1930. There was evidence that he had made other loans to other people. Plaintiff also produced a witness who said that he saw Hindle get some money from Goldenberg but he didn’t know how much he received.

Mrs. Hindle knew nothing of the alleged loan but did testify that Golden-berg had mentioned to her that he had a claim against the estate for five dollars (the one allowed by the jury), but had not mentioned a claim for $300. The claim for five dollars was evidenced by a check signed by Hindle.

This was -a case particularly suitable for determination by a jury, resting as it so largely did upon the credibility of the plaintiff and the witness who testified that he saw money pass from Goldenberg to 'Hindle. So meagre was the .testimony that to grant a new trial would amount to little more than substituting the judgment of the Court for that of the jury.

Under all the circumstances, the Court thinks that the verdict does substantial justice between the parties and therefore denies the plaintiff’s motion for a new trial.

For plaintiff: Peter W. MeKiernan. For defendant: Donald O. Burke.