Kennedy v. New York & Harlem Railroad

3 Duer 69

• Court: The Superior Court of New York City
• Decided: February 11, 1854
• Status: Published

Opinion

By the Court. Bosworth, J.

The court reluctantly interferes with the verdict of a jury, or the finding of a referee, on questions of fact. They have better opportunities to come to a correct conclusion, as they hear and see the witnesses, than a court, which judges only from a report of the testimony, which cannot always be so taken as to make the same impressions upon those who read it, as upon .those who heard it;

There are some things connected with the testimony of James G-. Kennedy, which may be susceptible of a; satisfactory explanation, but which unexplained, of uncorroborated, are calculated to excite great distrust as to its accuracy. His testimony was given on the 29th of January, 1853. He presented a statement of the articles said to be in the trunk at the time it was lost. He testified that this statement was in his own handwriting, that he made it three or four days after the loss, which occurred on the 13th of April, 1852, that he never showed the paper to any one, until the evening of the 28th of1January, 1853. He never showed it to the plaintiff, or' to his attorney. He says he made out the list, because he knew of the loss of baggage in England, and that they did not pay without suits. This, in the form in which he testifies he wrote it, is entitled: “ Lawrence Kennedy v. Hew Yobk and Harlem Rail Road Company.—’List of articles of clothing lost by the H. Y. and H. R. R. Company, belonging to the plaintiff.” Then follows an enumeration of the articles lost, with his estimate of the value of each. It enumerates every article contained in the bill of particulars furnished by the plaintiff, and no other. Every article, separately valued, is valued in both at the same price, except a trowel, which is 44 cents in one, and 37J in the other. In the statement of the witness, in one or two instances, two or more small articles are estimated in the aggregate, while in the bill of particulars tbey aPe estimated separately; but in such cases, his estimate of the aggregate value exactly corresponds with the aggregate of the several estimated values in the bill of particulars. The coincidence is extraordinary. Why the precaution of making such a list was exercised, and the list was preserved, without his showing it to the plaintiff or his attorney, or without his alluding, in his conversation with them, to the fact of his having made it, cannot be understood without explanations. If the testimony of this witness is rejected, the other testimony would not be sufficient to justify the report of the referee, tinder such circumstances, we think another trial should be allowed to the parties, and that the. trial should be by a jury. An order will be entered reversing the judgment, and setting aside the report of the referee. But the granting of a new trial must be upon the condition that the defendant pay the costs of the reference and of the subsequent proceedings. : If these terms be not accepted, the judgment must be affirmed with costs.