4 Daly 96 | New York Court of Common Pleas | 1871
—The plaintiffs were their own chief witnesses to prove their loss. They swore it up to the sum of $9,989 03 for goods totally destroyed (exclusive of damage to goods partially destroyed, which had been by arbitration fixed before the judgment at $2,60015). The referees
It is no objection to the report and judgment that the referees found for the plaintiffs less than the latter positively swore to. The defendants offered evidence as to the loss being at most not more than $4,600. They did this by a number of witnesses who swore to the extent of the fire, its slight character, the position and condition of the goods found after it, the damage to the bins, shelving, &c., where the goods were alleged to be when the fire took place, the size of the store or room, &c., &e.,
The referees certainly had evidence before them to sustain their finding, and even to sustain a finding for a larger amount. If they had found for the whole claim of the plaintiffs, the defendants would, according to their own argument, have had less to complain of, since the only two points of law relied on by them, viz.: fraud and false swearing, and a compromise finding, would have been out of the case. It is no objection to the recovery that it was for a lesser sum than claimed, so long as the plaintiffs do not appeal from it.
I cannot see, under the common practice and course of. decisions in the courts, how we can review the finding on the conflicting testimony. The plaintiffs are made competent witnesses by statute, and the referees have the right to credit their evidence. The considerations urged by the defendants on the appeal are more proper to be addressed to the referees than to the appellate court. Whatever suspicion attaches to the statement of the plaintiffs, because it was given after the adjournment, when they might have committed to memory their preliminary proofs of loss, an°d rehearsed them as the result of refreshed recollection or original effort of memory, is disposed of by the fact that the referees chose to believe them, after seeing and hearing the witnesses themselves, and being convinced of their truthfulness, or, at least, of their honest intention to be truthful. I should be the more unwilling .to disturb the finding, because the tribunal before which the issues were tried was constituted so as to afford good guaranties for its impartiality. There were three referees—one named by each of the parties, and one
The judgments should be affirmed.
Judgment affirmed.
Present Paly, Ch. J., Labbemobe and J. F, Daly, JJ.