33 N.Y.S. 376 | N.Y. Sup. Ct. | 1895
This action was brought for the partition of cer- - tain real estate in the city of New York, the property in her lifetime of one Ann Owens. Upon her death, Ann Owens left, her surviving, two sisters, Mary Hardy, who died without issue shortly after the death of Ann Owens, and Rosanna Coy, born Hardy, who died in 1867, leaving, her surviving, three children, Ellen, Catherine, and Mary Ann Coy. Ellen Corrignio and Mary Isabella Corrignio, though not originally parties to the action, were brought into it upon their own motion, claiming that they were the children and sole heirs at law of Mary Ann Coy, who, as we have seen, was a niece of Ann Owens. The question whether the Corrignios were the children of Mary Ann Coy was, with a number of other distinct issues framed in the action, left to the jury, and their verdict was against the claim advanced by the Corrignios; and it is upon the ground that such verdict was against the weight of evidence, and upon the further ground of newly-discovered evidence, that the two motions were made for a new trial, from the denial of which appeals are taken. In disposing of the first, viz. the motion for a new trial upon the minutes, a reference to the facts is necessary. It was conceded that Mary Ann Coy was a niece of Ann Owens; and, in order to establish their claim of heirship to Ann Owens, it was therefore only necessary for the Corrignios to show that they were the children or issue of Mary Ann Coy. To prove this they produced the testimony of their father, their own testimony, and that of five other witnesses not related to them, all of which was taken by commission in New Orleans, where the Corrignios live. Their testimony, in substance, was that Ellen and Mary Isabella Corrignio were the children, born Out of wedlock, of Mary Ann Coy and Dimitry Corrignio; that up to the time of the death of their mother, in 1877, they had always lived with and been recognized by her and Dimitry Corrignio as their children, and by their aunts, Ellen Ponds (formerly Coy) and
As against these eight witnesses and this documentary evidence we have the testimony of Ellen Ponds and Catherine Coy, who, as we have stated, were the two sisters of Mary Ann Coy. Their testimony was taken before the. Corrignios had been made parties to this action, and is to the effect that their sister Mary Ann Coy died without issue. Of these two, the one in the best position to know was Catherine Coy, who, it appears, was accustomed frequently to visit her sister Mary Ann-during her lifetime; whereas between the Corrignios and Ellen the same custom of visiting did not prevail, and although she visited her sister at intervals, and thus must have had some knowledge of the situation and surroundings of Mary Ann Coy, yet she was not in as good position to know the household of the Corrignios and how it was made up as was her sister Catherine. Ellen Ponds’ testimony was that Mary Ann Coy “left no issue that she knew' of”; and that of Catherine was to the effect that. Mary Ann died without issue. This witness, however, was not one that should impress a jury as against more credible witnesses, it appearing that for many years
It is the undoubted rule that this court is always reluctant to interfere with the findings of a jury upon conflicting testimony, where the jury has had the advantage of seeing the witnesses testify and observing their demeanor. But that rule in its full force does not apply here, because the testimony bearing upon the question of heirship was before the jury in the form of written depositions, and this court is as competent to pass upon the credibility of witnesses so examined as the jury itself. Such depositions clearly show, as we have already pointed out, that Mary Ann Coy was married to Dimitry Corrignio, and that Ellen and Mary Isabella were raised by them as their children; that the church records, which were made at a time when it cannot be assumed
“Juries are not infallible. They are individually and collectively subject to the ordinary infirmities of human nature, and cases do occur where, if the court did not interpose and set aside the verdict, it would amount to a denial' of justice. By doing so, no right is taken away. The effect of setting aside the verdict is simply to subject the case to further consideration of another jury, and even this has its limitations. This supervisory jurisdiction over the verdict of a jury, even upon a question of fact, is a most salutary one, and, in the language of Graham, no lover of justice would wish to see it crippled or narrowed, as it might otherwise be in the power of juries to trample upon justice.”
A new trial need only be granted with respect to the issue raised as to the heirship of the Corrignios, no necessity existing for setting aside the verdict upon the other issues between the plaintiff and the other parties to the action, because that as to the Corrignios being heirs of Ann Owens was one entirely distinct from any other issue in the case. The Corrignios do not question the correctness of the verdict of the jury upon the issues raised by the other parties to the action; and, since the verdict was entirely favorable to these other parties, upon the new trial the controversy as to the Corrignios can be disposed of without disturbing the verdict upon those points as to which all parties agree it was correct. We
FOLLETT, J., concurs. VAN BRUNT, P. J., dissents.