95 N.Y.S. 25 | N.Y. App. Div. | 1905
This case has'been tried three times and has been here twice before. Upon each trial the plaintiff has recovered a verdict. The judgment entered on the first trial upon a verdict for $10,000 in favor of the ' plaintiff, after unanimous affirmance by this court (34 App. Div. 626) was set aside at Special Term and a new trial ordered on the ground that two witnesses (Rink and Collins), who gave evidence for the plaintiff, had been bribed by the plaintiff’s then attorney, with the knowledge of his guardian ad litem, to testify falsely upon the trial, and that the verdict had been obtained by imposition and fraud upon the court by perjured testimony. Upon the second trial Rink and Collins were called and testified for the defendant.; confessed that the evidence given by them for the plaintiff on the former
The memorandum opinion of the learned trial justice does not show the ground upon which the order was made, but we must assume that it was upon the ground that the verdict was against the weight of evidence, which is in fact the only debatable ground presented by the record. The charge under which the issues were submitted to the jury was free from error, and no errors appear to have been committed during the progress of the trial.
Upon the last trial the witnesses were the same as upon the second, with the exception of Rink, who on the first trial testified for the plaintiff, on the second trial for the defendant, and died prior to the third trial. His testimony on the former trials was read, however, and was before the jury. .Ho question is presented by this appeal that was not before this court on the second appeal, and then carefully considered, except that the trial justice upon the second trial refused to set the verdict aside and grant a new trial, and in the case now before us the trial justice granted a similar motion.
The defendant’s contention is now, as it was then, that the credible evidence establishes negligence on the part of the plaintiff’s mother, imputable to him, which contributed to the injury, and that (as counsel for the respondent states the proposition) “plaintiff’s case was conceived in perjury, and that at the last trial, as well as at the first, the verdict obtained by plaintiff was founded on perjured evidence, and was contrary to the weight of credible testimony.” On the former appeal (61 App. Div. 432) this court refused to sustain this contention, holding that it was not warranted by the facts presented,
In Kummer v. Christopher Street R. R. Co. (14 Misc. Rep. 507) the court refused to set aside the verdict, although it had set aside two former verdicts. Pryor, J., writing the opinion, said : “ Our conclusion as to the injustice of the former verdict- was founded expressly upon our persuasion that the case was a fabrication. The question, then, is exclusively as to .the credibility of the witnesses, , for the plaintiff; and we are to decide whether, after three concurring verdicts in his favor,- we shall set.aside the last because, in our opinion, supported by evidence unworthy of belief. * * * Three successive-juries have avowed their conviction of the veracity of the witnesses for the plaintiff, however repugnant to probability their story may appear to us. Obviously, unless we are to usurp the prerogative of the jury in their peculiar function, to determine the credibility of witnessed, we must give effect to' the present verdict. (Nelson v. R. R. Co.
It follows from these views that the order appealed from should be reversed and the verdict reinstated, with costs to the appellant.
• Bartlett, Woodward, Jenks and Miller, JJ., concurred.
Order reversed, with costs, and verdict reinstated, with costs.
Nelson v. Bastón & Amboy B. B. Co — [Rep.