In re Littman

159 F. 233, 1908 U.S. Dist. LEXIS 96

Opinion

J. B. McPHERSON, District Judge.

This case illustrates admirably the value of the rule that findings of fact made by a tribunal before whom the parties and the witnesses have appeared and been examined are not to be lightly set aside. From the record now before the court, which I have read attentively from beginning to end, it is very difficult, if not impossible, to ascertain with even a fair degree of certainty what realty occurred during the three or four weeks under investigation. Both tyittman and Zaretsky are of foreign extraction, apparently more at home in some other tongue than English, and the stenographer’s notes seem frequently to indicate either that the questions oí counsel were jiot accurately understood, or that the witness could not command sufficient English words to express his answers with clearness. Under such circumstances, experience has shown abundantly that it is almost essential that the witness should be seen and heard in order that one may feel a reasonable confidence that the answers have been understood in the sense intended by the speaker. Without the aid of sight and hearing, a mere transcript of his words may be nearly, if not quite, unintelligible, and at the best is likely to be confusing. In the present case, however, I have been able to see with sufficient distinctness, that there is a substantial conflict of testimony upon the vital point whether there was an oral agreement of partnership between tyittman and Zaretsky that should affect the distribution of the fund arising from the receiver’s sale, but I have found it impossible to conclude that the referee was clearly wrong in finding that the fact of such partnership had not been established.

His ruling upon this point must therefore be affirmed, and the order should carry with it. the dismissal of the petition so far as it may concern the alleged firm of Littman & Zaretsky, or the individual interest of Zaretsky himself.