
    Abraham Jarchover, an Infant, by Mina Wechsler, his Guardian ad Litem, Respondent, v. The Dry Dock, East Broadway and Battery Railroad Company, Appellant.
    
      Jfew trial on the ground that the jury were prejudiced against the plaintiff’s witnesses because of their nationality — the prejudice must appear by the minutes— right to mom on this ground.
    
    A motion for a new trial upon the minutes of the court under section 999 of the Code of Civil Procedure, made upon the ground that the jury were-prejudi'ced against the moving party’s witnesses because of their nationality, should not he granted where nothing appears in the minutes of the court from which the jury’s prejudice can fairly be inferred.
    It is doubtful whether such a motion can he made under section 999 of ■ the Code of Civil Procedure.
    Appeal by the defendant, The Dry Dock, East Broadway and Battery Railroad Company, from an order of the Supreme Court, made at the Hew York Trial Term and entered in the office of the clerk of the county of Hew York on the 27th day of March, 1899, setting aside the verdict of a jury in favor of the defendant, and granting the plaintiff’s motion for a new trial made upon the minutes.
    
      Henry L. Scheuerman, for the appellant.
    
      Charles Steckler, for the respondent.
   Rumsey, J.:

The action was brought to recover damages suffered by the plaintiff because of the negligence of the defendant’s employees. At the trial the defendant had a verdict. A motion for a new .trial was made upon the minutes of the court which was granted, and from the order granting it this appeal is taken. The motion was made Upon the various grounds enumerated in section 999 of the Code of 'Civil Procedure, and is sought to be sustained in this court for the reason that it was against the weight of the evidence, and that it was apparent- that the jury was prejudiced against the plaintiff’s witnesses because of their nationality.

A motion for a new trial because the verdict is against the weight of the evidence is addressed largely to the discretion of the court before whom the tidal was had, and that discretion will not be lightly interfered with if it can be seen that because of the preponderance of the evidence in behalf of the person defeated on the trial there may have been ground for the belief that the jury reached their verdict through pi’ejudice, partiality, mistake or corruption. But upon this appeal we are called upon to review their discretion, and in so doing we must examine the testimony to enable us to say whether the conclusion reached by the trial judge as to the preponderance of the evidence was or might have been justified.

The accident occurred while a horse car of the defendant was going through Essex street in the.city of Hew York on the 7th of August, 1897. The plaintiff was a child about two years and eight mohths old. It was claimed on his behalf that the driver of the car was talking with a friend standing by him on the front platform of the car, and although his horses were going rapidly he was not watching the track in front of him, and that if he had been, he must have seen the little child on the track in time to have stopped his car and not have run over him. The defendant claims that the horses were going slowly and that the child was pushed against the dashboard or the horses in such a way that it was beyond the power of the driver to prevent running over the child after it fell against the car. Several witnesses were examined in behalf of each party. Some of them were entirely disinterested, and it was clearly a case where it was for the jury to say which of the two accounts was to be believed and to decide the disputed question of fact. The plaintiff had the burden of proof to establish not only negligence but lack of contributory negligence, and this he was bound to do by a preponderance of the evidence upon each point. To give him a verdict, therefore, the jury must have been satisfied that his evidence was more to be relied upon than that of the defendant, whereas, to sustain a verdict for the defendant, it was simply necessary for the jury to say that upon the whole case they did not think the preponderance of proof was in favor of the plaintiff. In such a case the court is not justified in setting aside a verdict as against the weight of the evidence unless it is plainly to be seen that the preponderance in favor of the plaintiff was so great that the jury could not have reached the conclusion they did upon any fair - interpretation of the evidence, and a conclusion of the jury against the plaintiff is not to be overthrown if there can be any question as to where the preponderance of the proof was.

■ It is sought to sustain this order also for the reason that the jury were so prejudiced against the witnesses of the plaintiff because of their nationality that they did not give proper weight to their testi- ' mony. A motion for a new trial upon the minutes of the court is only permitted by virtue of the provisions of section 999 of the Code of Civil Procedure. Before the existence of the Code it was unknown. It can only be made, therefore, for the reasons specified in that section.. Irregularity on the part of the jury is not one of the reasons, and, therefore, there is great doubt whether such a motion could be made upon that ground ; but, passing that question, it is certain that no application for a new trial upon that ground can be made unless something appears in the minutes of the court from which it can be fairly inferred that the jury were prejudiced against the witnesses of the plaintiff. There is nothing of the kind in this ■case. Ho criticism of the witnesses based upon that ground seems to have been made during their examination. We are not advised that anything occurred in that regard during the summing up to which exception was taken, and all that can be found in the charge of the. learned trial justice to the jury which so far from prejudicing'the jury was more likely to dissipate their prejudice, if any existed, which does not appear. The motion cannot, therefore, be sustained upon any such ground, for no fact can be found in the minutes supporting it.

For these reasons the order must be reversed, with ten dollars costs and disbursements, and a new trial denied, with ten dollars ■costs. '

Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and new trial denied, with ten dollars costs.  