23 N.Y.S. 213 | N.Y. Sup. Ct. | 1893
Lead Opinion
In the application of Catharine Mahaney for membership in the defendant, it was stated that she was born on the
To rebut this evidence, the plaintiff introduced a large number of witnesses, who had been acquainted with Mrs. Mahaney, to more or less extent, and who, in most instances, placed her age at the time of her death at about 56 years. One of these witnesses, Mr. Cunningham, whose evidence is particularly relied on by the plaintiff, testified that- he had seen Mrs. Mahaney and Cain O. Mahaney in Bristol, England, before 1850, and that they were not married then, that he knew of. He does not profess to give the age of either at that time, except that he says he thinks that Mrs. Mahaney was older than he was. Of himself he says that he was born at Bristol in 1835 or 1837, and made Bristol his home until about 1850, and was 17 or 19 when he left there. Of Cain O. Mahaney he says he saw him in the city of Bristol. “1 didn’t know him long,—perhaps two or three months. I was quite young.” Of Mrs. Mahaney he says that he met her after he knew Cain, and that she then went by the name of Kitty Gaul. He does not state where she lived, except that he understood she lived with some relations by the name of Gaul, in an adjoining parish. He admits testifying upon another occasion that he did not see her at any other place than on the street. He does not say where it was that he first saw Cain, or where Cain in fact lived. This witness is very uncertain in his dates, and while his evidence, standing alone, may throw some doubt as to whether these parties lived in London at the date of the marriage record, it fortifies but very little the proposition that Mrs. Mahaney was born as late as November, 1834.
There appears to be no reason why Mrs. Mahaney, at the time of making the pension applications in 1878 and in 1889, should state her age greater than she thought it was in fact, or place the date of her marriage earlier than it was, according to her then understanding. She evidently had no records to guide her. There is in the case no record evidence of her birth. She was a woman of some education, as she wrote her name to the application of 1878. Both of .those
There is another consideration that has some bearing. There is evidence that the daughter, Ellen, was married at Oswego in 1862, and that she was then 17 or 18 years old. These facts are not disputed, and the plaintiff was apparently in a position to be able to ascertain whether they were true or not. If Ellen was then 18, that would place her birth- in 1844, as stated in the birth record. It also appears that in a written application by plaintiff for membership in the Flour City Life Association, dated July 29, 1889, and signed by the plaintiff, the age of her mother is stated to be 65. The person who took this application undertakes to say that the age of the mother was not filled in by plaintiff, or from her statements, but his evidence on the subject is not very satisfactory. The plaintiff herself does not speak on the subject. She is not sworn as to the age of her mother, nor are either of her two sisters, though they appear to be accessible. No reason appears why they are not called to speak on the subject. The witnesses upon either side who express their opinion as to the age of the deceased do not appear to be her relatives.
In view of the evidence furnished by the pension applications, by the birth records, and as to the marriage and age then of the daughter, Ellen, and the declaration of the plaintiff, and in view of the necessarily uncertain and inconclusive character of the opinion evidence on the subject of age, we are strongly impressed with the idea that, upon the case as it stands before us, the verdict is against the weight of the evidence.
It is suggested by the respondent that the statements of the as- . sured were not competent evidence against the plaintiff, and that, therefore, they should not be considered on this appeal. On the
Concurrence Opinion
(concurring.) Although, as a rule, we do not disturb a verdict founded upon conflicting evidence, (Clemons v. Supreme Assembly, 21 N. Y. Supp. 348.) still, in a case where so much doubt exists as to the correctness of the finding, as is clearly shown by the foregoing opinion, I am disposed to favor another trial, when the parties may, if possible, present more satisfactory evidence upon the vital questions. I therefore vote for a new trial. Judgment and order reversed, and a new trial ordered, upon the payment by the appellant of the costs of the trial, and without costs of this appeal to either party. In case such costs are not paid within 20 days, then judgment and order affirmed, with costs.