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App. Div.]



The preponderance of evidence which authorizes a nonsuit or the direction of a ver-
dict corroboration of an interested witness.

Where the weight of evidence is so decidedly preponderating in favor of one party that a verdict contrary to that preponderance would be set aside on motion, a trial judge should nonsuit or direct a verdict as the case may require. Where, in such a case, the testimony of an interested witness is fully corroborated, the case may be decided by the court without submitting the question as to the witness' credibility to the jury.

APPEAL by the plaintiff, Ernestine Cohn, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 18th day of July, 1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Charles G. F. Wahle, for the appellant.

Grant C. Fox, for the respondent.


The plain sustained injuries on the 23d of March, 1896, by being run over by a horse and wagon as she was attempting to cross from the northeast to the southeast corner of Second avenue and Eighty-sixth street in the city of New York. It was alleged in the complaint that the horse and wagon belonged to the defendant; that the horse was being driven by a servant of the defendant, and that his carelessness and negligence in driving were the cause of the accident. These allegations were denied in the defendant's answer. At the close of all the proofs the complaint was dismissed by the justice presiding, and from the judgment entered thereupon this appeal is taken.

It was incumbent upon the plaintiff to prove that the driver of the wagon was the servant of the defendant. She did show that there was painted on the wagon the name of the "David Mayer Brewing Company, 1235 Second Avenue," and she also showed that upon the premises No. 1235 Second avenue there was a sign "David Mayer Brewing Company, Bottling Department." We will assume

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[Vol. 38. that that was sufficient to establish prima facie the ownership of the wagon. (Seaman v. Koehler, 122 N. Y. 647.) The case cited appears to authorize the inference that the driver of the wagon was the defendant's servant. It then devolved upon the defendant to prove, in order to escape liability, that it did not employ the driver, or that he was not in its service or engaged in its business at the time of the accident.

There were several witnesses for the defendant, each of whom testified that the wagon did not belong to the David Mayer Brewing Company, but that it belonged to one Katz, who succeeded the David Mayer Brewing Company in business. The driver of the wagon testified that he was driving it when the accident occurred, and that he had never been in the employ of the defendant. Katz testified that on the 23d of March, 1896, the driver of this wagon was employed by him, and that he (Katz) bought the wagon from a maker named Woodruff. Joseph Blank testified that he was the manager of Katz's business, carried on at No. 1235 Second avenue, from December, 1895; that this wagon was bought by Katz, who caused it to be painted over. Mayer, the secretary of the defendant, testified that the wagon did not belong to the defendant, had never belonged to it, and that the driver never had been in the employ of the defendant. It appeared that Katz continued to use the name and the sign of the defendant after December, 1895, in the bottling business.

Here was the positive testimony of four persons that the wagon did not belong to the defendant, and that the driver was not in its employ. Under those circumstances the inquiry is whether there was anything to go to the jury. Where the weight of evidence is so decidedly preponderating in favor of one party that a verdict contrary to that preponderance would be set aside on motion, a trial judge should nonsuit or direct a verdict as the case may require. (Hemmens v. Nelson, 138 N. Y. 517; Linkhauf v. Lombard, 137 id. 417; Lane v. Town of Hancock, 142 id. 519; Dwight v. Germania Life Ins. Co., 103 id. 343.) But it is claimed that the credibility of a witness or witnesses is involved, and hence that the case should have gone to the jury. I do not think so. The court should have directed a verdict for the defendant. Joseph Blank was a disinterested witness. The driver's testimony involved Katz in liability,


and Katz's testimony showed that if any one were liable for the negligence of the driver, he was. Mayer, the defendant's secretary, may be called an interested witness, but there was full corroboration of his testimony, and where there is such corroboration, the case may be disposed of by the court without submitting the credibility of such witness to the jury, and the court should accept it as true. (Anderson v. Boyer, 156 N. Y. 99.)

The judgment should be affirmed, with costs.

VAN BRUNT, P. J., BARRETT, RUMSEY and O'BRIEN, JJ., concurred.

Judgment affirmed, with costs.


O'BRIEN, Appellants.

Street paving contract agreement to put in a sham bid-a contract based thereon is void as against public policy — decision on conflicting evidence.

Where, after the bids for a street paving contract have been asked for, a party who has on hand blocks of stone which he wishes to dispose of and who intends to put in a bid, in consideration of a second party's agreeing to take such stone from him at a specified price, puts in a sham bid by which the second party is enabled to obtain the contract, such a transaction must be regarded as contrary to public policy and void, and the agreement cannot be made the basis of a recovery against the successful bidder, where the latter refuses to take the entire quantity of stone.

The decision of the court below on conflicting evidence, when not disturbed on appeal, considered.

APPEAL by the defendants, John C. Sheehan and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 31st day of May, 1898, upon the report of a referee, and also from an order made at the New York Special Term and entered in said clerk's office on the 27th day of May, 1898, granting the plaintiff an extra allowance.

The plaintiff seeks to determine controversies arising in the execution of an unwritten contract, by which he was to furnish the defendants with granite paving blocks.


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[Vol. 38.

The complaint states four causes of action: (1) To recover for the delivery of 114,688 blocks of granite, made in June and July, 1895; of 161,068 blocks in August; 231,849 in September; and 42,733 in October, at $65 per 1,000, payable in monthly bills, amounting in all to $35,532.19, with interest from the several dates amounts were due. (2) To recover $1,279.38 for the services rendered in carting 255,975 blocks, at $5 per 1,000. (3) To recover $3,250 damages for defendants' breach of contract, in refusing to accept more than 550,000 of 900,000 blocks contracted for. (4) To recover $1,985.98 damages for defendants' failure to pay claims for demurrage, additional freight, and for removing obstructions on the wharf. The complaint admits payment of $10,000, and allows credits for wharfage, reducing the total amount to $34,085.05, and demands judgment therefor, with interest from the several dates.

The answer admits that the granite blocks were furnished, as claimed, at $65 per 1,000, but denies that there was to be monthly payment in cash, claiming that payment on the whole contract was to be made in Long Island City bonds; admits the carting of 255,975 blocks, but alleges that $4.50 per 1,000 instead of $5 was the price agreed upon for such service; denies any breach of contract, stating that the number of blocks contracted for was not 900,000, but 500,000; denies liability for demurrage or other claims; and, by counterclaim, alleges certain payments made by transfer of Long Island City bonds, and that the quality of a portion of the blocks furnished was not as stipulated. On this latter claim no proof was presented on the trial, but, as to the former, a credit of $22,906.92 was allowed the defendants- the proceeds of bonds sold by them for the plaintiff's benefit.

The referee found that the defendants had agreed to make monthly payments in cash and not in bonds; that $5 was the price accepted for carting; that 900,000 blocks had been contracted for, and gave judgment to the plaintiff on the three causes of action, taking for measure of damages on the question of breach of contract the difference between $65 per 1,000, the contract price, and $57, the highest market price. On the 4th cause of action the referee held that the contract called for delivery on the wharf and no demurrage was chargeable, but found that the plaintiff had a claim of $244.18 for removing obstructions on the wharf

App. Div.]


at the request of the defendants, which with interest amounted to $282.99.

Crediting the defendants with money paid and the proceeds of the sale of certain bonds which the plaintiff had received, the referee decided that the amount still due the plaintiff was $9,149.51, with the costs of the action. Motion was thereafter made to the court for extra allowance, which was granted, the sum being fixed at $800, and judgment was entered for $10,350.98.

After filing the proper exceptions the defendants appealed from the judgment and from the order granting extra allowance.

Edward Browne, for the appellants.

J. Woolsey Shepard, for the respondent.


The appellants contest the several causes of action as they did on the trial before the referee, and on this appeal insist that his conclusions in favor of the plaintiff were against the weight of evidence. To determine whether or not this view can be sustained requires an examination of the entire record, and, although to detail the evidence at length would exceed the limits of an opinion, we may, by way of summary, reach a conclusion as to the force of the appel-lants' contention.

For a first cause of action the plaintiff alleged that he was entitled to receive monthly payments in cash for the stone delivered. The times of payment were not seriously disputed, for Mr. O'Brien, one of the defendants, who was the person chiefly engaged in making the contract with the plaintiff, testified: "We were to pay once a month." What was really disputed was the manner of payment — whether it should be in cash as the plaintiff stated, or in bonds of Long Island City as claimed by the defendants.

On this point there was a conflict of evidence, and the referee in his conclusion no doubt took into consideration an apparent inconsistency which arose in the testimony of Mr. O'Brien, who said that he had informed the plaintiff that payment was to be made in bonds the same as a Mr. Pierce, agent for the New York and Maine GranAPP. DIV.-VOL. XXXVIII. 2

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