171 N.Y. 577 | NY | 1902
The action was brought to recover damages for the conversion by the defendant of a quantity of harvested hops. The defendant, as sheriff, had levied upon, and sold, the hops under an execution issued upon a judgment recovered against Joseph Pichler. The farm, upon which the hops had been raised, belonged to plaintiff's testatrix and the controversy *578 was over the ownership of the farm product. In behalf of the plaintiff, the evidence showed, or tended to show, that, after she had acquired title to the farm, she made an agreement with Joseph Pichler, her brother; by which he was to work for her and care for the place, accounting to her for any surplus over expenses. She lived in New York and she agreed to pay him, and to furnish moneys whenever needed in running the farm. In behalf of the defendant, there was evidence tending to contradict the plaintiff's statements about her relations with Pichler and to show that the arrangement was, really, one which vested the title to the crops in the latter. The evidence upon the subject was conflicting; but, from either point of view, it was not inconsistent with the fact that Pichler was working the farm for, and as the servant of, its owner. The decision of the controversy was, clearly, one for the jury to reach and the verdict for the plaintiff should not be disturbed; unless there was some error in the course of the trial, which necessitates a reversal of the judgment upon the verdict. The appellant argues that such an error was committed in permitting the plaintiff's testatrix to testify, against his objection, that the hops were hers; because their ownership was the matter in controversy and it was the province of the jury to draw the conclusion from the facts and circumstances. Doubtless, if the question objected to called for an opinion, or for a legal conclusion, upon the facts appearing in the case, it would be objectionable. But witnesses may testify to facts, which are within their knowledge, even though the facts are such as the jury is, eventually, to determine. There is a distinction between asking a witness to testify to a fact, the existence of which depends upon an inference from a collection of facts, or upon the construction of written instruments, and asking him to testify to a fact, which is, necessarily, within his knowledge. The credence, or assent, to be given to his testimony, if affected by the evidence, will be for the jury.
In De Wolf v. Williams, (
I find no ground for reversing the judgment appealed from and, therefore, advise an affirmance, with costs.
PARKER, Ch. J., O'BRIEN, BARTLETT, MARTIN, VANN and CULLEN, JJ., concur.
Judgment affirmed.