Werely v. . Persons

28 N.Y. 344

• Court: New York Court of Appeals
• Decided: September 5, 1863
• Status: Published

Opinions

I am not able to distinguish this case, in principle, from those of Aveson v. Lord Kinnaird, (6 East, 188;) Gray v.Young, (Harper, 38;) and Caldwell v. Murphy, (1 Kern. 416.) The declarations in this case are a little more remote than in the previous cases, and the circumstances are such as to throw more doubt upon their sincerity, but their remoteness was not such as to furnish a ground for their exclusion. I think it entirely safe to leave the question to the jury in all such cases, whether any and what credit shall be given to such declarations. As was said by Judge JOHNSON, in the case of Gray v. Young, (supra,) where, in an action on the warranty of the soundness of a slave, the declarations of the slave were allowed to be proved against the defendant, "No evil can possibly result from such a principle; for if unattended by any external symptoms of disease, they never could gain credit. Whatever might be the declarations, or complaints, no one would be accredited for them, who exhibited all the appearances of robust health and vigor, without the most palpable demonstration of an existing disease." The present case appears to me to illustrate the correctness of this reasoning. If the jury had given the least credit to the declarations of the plaintiff, as to the long continuance of his suffering, their verdict would probably have been much larger than it was.

I think the judgment should be affirmed.