Hansen v. Burt

10 Misc. 235, 30 N.Y.S. 1061, 63 N.Y. St. Rep. 251

• Court: City of New York Municipal Court
• Decided: November 15, 1894
• Status: Published

Opinion

McCarthy, J.

This is an appeal from a judgment dismissing the plaintiff’s complaint.

The plaintiff had been examined and cross-examined, but the same was not concluded when the trial justice said he would not allow this case to go to the jury, and thereupon dismissed the complaint.

The action was for work, labor and services as captain of a certain barge at thirteen dollars per week for seven weeks, and as watchman for eleven nights at the rate of one dollar per night, and for other services particularly detailed.

The evidence presented a question of fact, part of the amount being admitted by the defendant’s answer.

The court erred in dismissing the complaint. It should have permitted the plaintiff to present all his evidence and then submitted the question to the jury.

The libel in the United States court against the steam tug Meta to recover for personal injuries was not a bar to this action. It was not between the same parties nor for the same claim, apd was in no way connected with the claim in suit. Nor are the facts alleged in the libel inconsistent with the claim in suit. The only purpose for which it could be used in this case is on the question of credibility of the witness, and this should have gone to the jury.

The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

Yah Wyck, J., concurs.

Judgment reversed and new trial granted, with costs to appellant to abide event.