Woodward, J.:
This is the third time that this ease, has been before this court upon appeal. Upon the first trial the defendants moved for the: direction of a verdict. The court reserved decision upon this motion, took the verdict of the jury, which found in favor of the plaintiff for $10,000, and then set aside the verdict and directed a verdict for the defendants, on which a judgment was entered -.dismissing the Complaint upon the merits. U pon appeal to this .court the judgment was reversed and a new trial granted, it being said! that the “plaintiff’s evidence established, if true, a distinct independent agreement to purchase, carry and sell upon order 1,000) shares of stock, of which the signing of the pool agreement was a mere incident.” (107 App. Div. 265.) In other words, this court, held that there was a question of fact for the jury to determine and1 this became the law of this case. Upon the second trial the jury found a verdict in favor of the plaintiff for the sum of $23,000, the: amount claimed, and upon appeal to this- court the judgment was; reversed on the ground that the verdict was against the weight of: evidence, but with no suggestion that the previous decision, holding; that there was a question of fact for the jury to determine, was not still! the law of the case. (118 App. Div. 10.) A new tidal was granted,, and upon this third trial the jury has again found in favor of the: plaintiff for the full amount of his claim, the evidence being substantially the same as that heard upon the previous trials, and the: learned justice presiding has set the verdict aside upon motion as; being against the weight of evidence, relying largely upon the; opinion of the court upon the last appeal, though apparently with some misgivings as to the propriety of the ruling.
Section 2 of article 1 of the State Constitution provides that,, the “ trial by jury in all cases in which it has been heretofore used1 shall remain inviolate forever,” language which could hardly be made stronger, and yet, if verdicts founded on sufficient evidence may be continually set aside because the trial justice, or those who pass in review upon the record, happen to differ with the jury as to the weight of evidence, the guaranty is hardly worth preserving in civil actions ; the great privilege which those who emigrated to this country from England brought with them “ ‘ as their birthright and inheritance, as a part of that admirable common law which had [305] fenced around and interposed barriers on every side against the approaches of arbitrary power ’ ” (Thompson v. Utah, 170 U. S. 343, 350) is. a barren ideality, subject tobe overturned at will. To be inviolate is to be unhurt, uninjured, unpolluted, unbroken. (17 Am. & Eng. Eucy. of Law[2ded.], 478.) If the provision of the Constitution is to remain “ inviolate forever,” it must not be violated either in form or spirit; there can be no justification where there is evidence to snppprfc a proposition,'to continually set aside the verdicts of juries until a jury happens to be found to agree with the trial court. There is a place somewhere, where the spirit of the constitutional guaranty requires that the verdict of the jury shall be final; and where there has been a sufficient number of trials, under fair conditions, so that it cannot be presumed that the jury has been under the control of passion, corruption or other improper motives, or has .failed to give to the evidence proper consideration it is the duty of the court to give effect to the verdict and to end the litigation. This court upon two previous appeals has, in effect, held that there was evidence in the case which was sufficient to submit to the jury; that there were two versions of the controversy, one of which was supported by the evidence offered by the plaintiff, and which, if believed, entitled the plaintiff to recover. Three juries, none of which are shown to have been governed by any improper motives, except as this may be gathered from the verdicts rendered, have believed the plaintiff’s version, which is not so highly improbable when all of the circumstances are taken into view, and to permit this verdict to be set aside because we, looking at the record, may think a different result should have been reached, is to nullify the Constitution in its spirit, and to needlessly prolong a litigation. The plaintiff was a writer upon financial matters; he issued letters advising clients upon the conditions existing in Wall Street, and the defendants were interested for themselves and their clients in promoting the success of the Southern Pacific pool. If they saw fit, for the purpose of inducing a friendly attitude on the part of the plaintiff, to make a contract with him for the purchase of 1,000 shares of the pool stock, and to agree that he might sell his holdings whenever he desired, the fact that this • might interfere with the pool is not material. The defendants might have had such an interest that they were willing to make this con[306] cession, and it does not necessarily follow that it would have changed the relations of the other members of the pool, for, as far as the evidence goes, the defendants might have purchased the interest of the plaintiff at the market price when he directed the sale and have continued the stock in the pool. The plaintiff did not demand that the stock be sold outside of the pool; what he asked for was to have his stock sold so that he could realize his profit. He had a right to make this contract with the defendants; they had a right to make the contract with him, and the evidence has convinced three juries that this was the contract which he actually made, and the mere fact that the case rests largely upon the testimony of the plaintiff is not a ground for holding that the defendants are entitled to a continuous trial of this action. This court, in the case of Lacs v. Everard's Breweries (107 App. Div. 250), upon a fall review of all the authorities, held that where a plaintiff had had three successive verdicts upon substantially the same evidence, the trial court was not justified in setting aside a verdict as against the weight of evidence, and no good reason occurs to us why that case should not be followed in the disposition of this.
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Woodward, J.:
This is the third time that this ease, has been before this court upon appeal. Upon the first trial the defendants moved for the: direction of a verdict. The court reserved decision upon this motion, took the verdict of the jury, which found in favor of the plaintiff for $10,000, and then set aside the verdict and directed a verdict for the defendants, on which a judgment was entered -.dismissing the Complaint upon the merits. U pon appeal to this .court the judgment was reversed and a new trial granted, it being said! that the “plaintiff’s evidence established, if true, a distinct independent agreement to purchase, carry and sell upon order 1,000) shares of stock, of which the signing of the pool agreement was a mere incident.” (107 App. Div. 265.) In other words, this court, held that there was a question of fact for the jury to determine and1 this became the law of this case. Upon the second trial the jury found a verdict in favor of the plaintiff for the sum of $23,000, the: amount claimed, and upon appeal to this- court the judgment was; reversed on the ground that the verdict was against the weight of: evidence, but with no suggestion that the previous decision, holding; that there was a question of fact for the jury to determine, was not still! the law of the case. (118 App. Div. 10.) A new tidal was granted,, and upon this third trial the jury has again found in favor of the: plaintiff for the full amount of his claim, the evidence being substantially the same as that heard upon the previous trials, and the: learned justice presiding has set the verdict aside upon motion as; being against the weight of evidence, relying largely upon the; opinion of the court upon the last appeal, though apparently with some misgivings as to the propriety of the ruling.
Section 2 of article 1 of the State Constitution provides that,, the “ trial by jury in all cases in which it has been heretofore used1 shall remain inviolate forever,” language which could hardly be made stronger, and yet, if verdicts founded on sufficient evidence may be continually set aside because the trial justice, or those who pass in review upon the record, happen to differ with the jury as to the weight of evidence, the guaranty is hardly worth preserving in civil actions ; the great privilege which those who emigrated to this country from England brought with them “ ‘ as their birthright and inheritance, as a part of that admirable common law which had [305] fenced around and interposed barriers on every side against the approaches of arbitrary power ’ ” (Thompson v. Utah, 170 U. S. 343, 350) is. a barren ideality, subject tobe overturned at will. To be inviolate is to be unhurt, uninjured, unpolluted, unbroken. (17 Am. & Eng. Eucy. of Law[2ded.], 478.) If the provision of the Constitution is to remain “ inviolate forever,” it must not be violated either in form or spirit; there can be no justification where there is evidence to snppprfc a proposition,'to continually set aside the verdicts of juries until a jury happens to be found to agree with the trial court. There is a place somewhere, where the spirit of the constitutional guaranty requires that the verdict of the jury shall be final; and where there has been a sufficient number of trials, under fair conditions, so that it cannot be presumed that the jury has been under the control of passion, corruption or other improper motives, or has .failed to give to the evidence proper consideration it is the duty of the court to give effect to the verdict and to end the litigation. This court upon two previous appeals has, in effect, held that there was evidence in the case which was sufficient to submit to the jury; that there were two versions of the controversy, one of which was supported by the evidence offered by the plaintiff, and which, if believed, entitled the plaintiff to recover. Three juries, none of which are shown to have been governed by any improper motives, except as this may be gathered from the verdicts rendered, have believed the plaintiff’s version, which is not so highly improbable when all of the circumstances are taken into view, and to permit this verdict to be set aside because we, looking at the record, may think a different result should have been reached, is to nullify the Constitution in its spirit, and to needlessly prolong a litigation. The plaintiff was a writer upon financial matters; he issued letters advising clients upon the conditions existing in Wall Street, and the defendants were interested for themselves and their clients in promoting the success of the Southern Pacific pool. If they saw fit, for the purpose of inducing a friendly attitude on the part of the plaintiff, to make a contract with him for the purchase of 1,000 shares of the pool stock, and to agree that he might sell his holdings whenever he desired, the fact that this • might interfere with the pool is not material. The defendants might have had such an interest that they were willing to make this con[306] cession, and it does not necessarily follow that it would have changed the relations of the other members of the pool, for, as far as the evidence goes, the defendants might have purchased the interest of the plaintiff at the market price when he directed the sale and have continued the stock in the pool. The plaintiff did not demand that the stock be sold outside of the pool; what he asked for was to have his stock sold so that he could realize his profit. He had a right to make this contract with the defendants; they had a right to make the contract with him, and the evidence has convinced three juries that this was the contract which he actually made, and the mere fact that the case rests largely upon the testimony of the plaintiff is not a ground for holding that the defendants are entitled to a continuous trial of this action. This court, in the case of Lacs v. Everard's Breweries (107 App. Div. 250), upon a fall review of all the authorities, held that where a plaintiff had had three successive verdicts upon substantially the same evidence, the trial court was not justified in setting aside a verdict as against the weight of evidence, and no good reason occurs to us why that case should not be followed in the disposition of this.
In Callanan v. Shaw (24 Iowa, 441, 444) Beck, J., in disapproving an instruction l' that no important fact can be proved without, at least, the testimony of one credible and unimpeached witness,” makes these pertinent remarks: “ It is impossible from the nature of things, for the law to provide rules which shall determine- the quantity or amount of evidence necessary to establish a fact in judicial proceedings. There .can be devised no standard — no unit of measurement, whereby we may determine just what measure'of evidence shall be required to prove a fact in issue. To say that one credible witness is necessary, is a very unsatisfactory and indefinite rule indeed. As a matter of fact, evidence can usually be brought before a jury only through the medium of human testimony ; there must, of necessity, be a witness, or one standing in that position, through whom the fact can be brought to the mind of a court or jury. * * * There must be, then, in most cases, to establish a fact, a witness, whether that fact be important or unimportant. But this rule gives no measure for the quantity of evidence, for knowledge, intelligence, qualities of memory, and all other attributes that make up ability, together with those moral qualities which con[307] stitute credibility, are most unequally united in men, so that one possessing all of the attributes of ability and credibility in the highest degree, and so known to the tribunal before whom he testifies, would, in his evidence, outweigh an indefinite number of witnesses who possess the same attributes in the lowest degree. It is also true, that a witness in order to prove a fact by his evidence, must be credible — he must be such a witness as will be entitled to receive the belief, the faith of others. But here again, from the very nature of the case, there are indefinite degrees in this character we call credibility. One may possess it in the highest degree, another in the lowest degree. It follows, therefore, that when evidence is weighed, to determine whether a fact has been proven thereby, all the qualities going to make up what is termed ability and credibility in a witness must be fully considered in order to arrive at a truth. And who should so weigh and consider these qualities ? Most evidently the jury. The court cannot discharge this duty for them, because the very opinion which they may form from these questions of ability and credibility in truth determines their finding. * * * If the witness, from want of intelligence, or from any other cause, is incompetent under the rules of law, the court will not permit him to testify, but when the evidence of the witness is before the jury, all questions of credibility are for them, and for them alone.” We have not seen the witnesses; we know nothing of their appearance upon the stand, and the thousand and one little matters that enter into the problem of credibility, and thirty-six men, fixed upon by the Constitution as the triers of fact, having held with the plaintiff, and even the trial justice not appearing to have acted upon any conviction of his own that the trial was not fair and impartial, it would seem to be time that we recognized the right of the jury to assume the responsibilities of this conti-oversy and to end the litigation by restoring the verdict.
The order appealed from should be reversed and the verdict of the jury reinstated.
Jenks and Bioh, JJ., concurred; Cayboe, J., read for affirmance.