Heywood v. Doherty

129 N.Y.S. 507

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 18, 1911
• Status: Published

Opinions

BIJRiR, J.

The two. questions presented on this appeal are the weight of evidence (that is, the credibility of Mrs. Heywood), and, second, the action of plaintiff’s counsel in referring to Mr. Doherty’s having been in jail.

[1] Taking up the latter first, I know of no case in which a verdict has been reversed because of the improper remarks of counsel, unless some request of the opponent in reference to such remarks has been refused by the court and due exception taken. As to-the cases cited by Mr. Justice SEABURY, namely, Freedman v. Press Pub. Co., 64 Misc. Rep. 85, 117 N. Y. Supp. 946, Walter v. Joline, 136 App. Div. 426, 120 N. Y. Supp. 1025, and Rothschild v. Weingreen, 121 N. Y. Supp. 234, in the first two, motions for a mistrial were expressly denied, and in the last the improper questions were expressly objected to as incompetent, irrelevant, and immaterial, and the overruling of the objection excepted to.

In the case at bar, defendant’s counsel asked that the obnoxious remarks be stricken from the record, and the court so directed. In its charge, also the jury was instructed to disregard this statement. While I agree with Mr. Justice SEABURY’S characterization of the conduct of plaintiff’s counsel, his opponent cannot be allowed to go to the jury without asking for a mistrial, in the hope that the verdict will be in his favor, and yet claim the right to a new trial if the verdict is against him.

[2] As to the credibility of Mrs. Heywood, 1 do not regard her story as to the conversation with Mr. Frueauff in Denver as inherently improbable, nor can it be said that the jury doubted her word merely because they believed that she was mistaken as to the promise to pay her doctor’s bill, $140, and her medicine bill, $10. They evidently believed that the balance of the $385, namely, $235, was promised to her.

As to the second cause of action, namely, excess salary, February 1 to October 1, 1906, $175, the jury believed that the promise had been made to her in Denver to pay her $20 a week.

As to that part of the third cause of action which covered excess salary, October 1, 1906, to August 1, 1907, $773, the jury no doubt thought that she was mistaken. There are elements in the testimony which render a distinction between the claims for the two items quite possible. From October 1, 1906, Mrs. Heywood was herself in the “cage” as cashier, and she herself drew the receipt which she signed. Moreover, during that period, namely, on January 16, 1907, she receipted for a “salary bonus for the year 1906” of $22.66.

While these distinctions may not appeal to us, they nevertheless suggest some basis for the jury’s determination; and, even though we may feel that we might not have come to the same conclusion, it cannot be said that the jury had no basis for finding as it did in respect of the excess salary for the two periods named.

[3] The balance of the third cause of action, namely, $593.40, consisting of $515.15 for overtime work and $78.20 for meals, I think the jury was justified in believing the defendant was entitled to recover. This was not salary, and was not affected by her receipt, but was for services rendered upon an express or special promise. While, of course, the testimony as to this promise is open to the suggestion pointed out by Mr. Justice SEABURY, still that consideration, also, was one for the jury. Counsel was free to cross-examine the witness as to her failure to testify to this special promise on the first trial. He did make reference to the testimony on the first trial in regard to other matters, and the cross-examination as to the extra services was severe and extensive.

The charge of the judge was eminently fair, and no exception was taken to it. In view of all these circumstances, and the fact that this is the second trial in which the plaintiff has succeeded, I think that the judgment should be affirmed, with costs.

Judgment affirmed, with costs.

GUY, J., concurs.