Cohen v. Brooklyn, Queens County & Suburban Railroad

PER CURIAM.

The plaintiff brought this action to recover for an alleged breach of contract of carriage by reason of an assault by a conductor employed by the defendant upon a car the number of which the plaintiff’s counsel stated upon the trial to be 3,717. The •defendant introduced testimony tending to show that the plaintiff’s attorney had informed the investigators of the defendant that the number of the car was 3,771, and that no such assault occurred on car No. 3,771 on or about the time when the plaintiff claimed that the assault was made, and that no report of such accident had been made. The testimony of the plaintiff was uncontradicted. The testimony •of the defendant’s witnesses as to what the plaintiff’s attorney had told them as to the number of the car was material on only two points: (1) Good faith of the plaintiff; (2) as explanatory of the ■defendant’s failure to call a witness.

As bearing on the good faith of the plaintiff, it must be remembered that the testimony shows that this information was apparently given voluntarily, after the motion for a bill of particulars had been denied, and at a time when the plaintiff’s attorney was under no obligation to give this information. It was given over the telephone, and it is certainly apparent that there might easily be an error in understanding the number given. We therefore conclude that the testimony does not show such bad faith on the part of the plaintiff that he can be said to have been impeached.

Upon the second point, if the justice believed the testimony in question, it may have been within his discretion to adjourn the case, so as to give the defendant time to produce evidence in regard to car No. 3,717; but it was not his duty to give a verdict for the defendant upon the merits.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.