
    Samuel Haas et al., Resp’ts, v. Mary Green, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed February 5, 1894.)
    
    I. Appeal—Conflicting Evidence.
    The decision of a justice, upon conflicting evidence, will not be disturbed on appeal.
    8. Witnesses—Credibility.
    The testimony of interested witnesses are not conclusive.
    3. Evidence—Expert.'
    The competency of an alleged expert witness is a preliminary question of fact to be determined by the court, and its determination is generally conclusive unless contrary to the evidence, or there is no evidence, or no sufficient evidence, to support it.
    4. Same.
    The fact that the witness has abandoned his studies as a chemist and devoted himself to the occupation of a druggist, vending drugs and toilet articles exclusively, does not render him any less competent.
    Appeal from a judgment of the district court in the city of •Hew York for the eleventh judicial district in plaintiff’s favor. Action to recover the agreed price of sundry garments sold and ■delivered to defendant.
    
      Edw. J. McGanney, for resp’ts; Wm. N~, Cohen arid Benj. Tuslca, for app’lt.
   Bischoff, J.

Plaintiffs sued to recover the sum of one hundred .and ninety-seven dollars the agreed price of sundry garments sold and delivered by them to defendant. Defendant conceded her indebtedness for one hundred and fifteen dollars but disputed plaintiffs’ right to recover the remaining eighty-two dollars, the price of a waist and skirt, on the ground that they had been delivered to her in a damaged condition and that she had tendered a return thereof. The contest on the trial, therefore, was narrowed down to the inquiry whether the waist and skirt were damaged before delivery thereof "to defendant, or thereafter. Concerning the subject matter of this inquiry nineteen witnesses were examined and the court below determined the issue in plaintiffs’ favor upon conflicting testimony. Ho purpose of general interest can be subserved by a discussion of the evidence in detail. It has, however, received our careful scrutiny, and while it may be that if we had been called upon to decide in the first place we would have reached a conclusion at variance with that of the justice below, wé are notwithstanding unable to say that he erred, since it was his peculiar province, no jury trial having been demanded, to determine the degree of credibility to which the statements of the several witnesses were entitled and the superior advantage of the trial justice in this respect, of personally observing the witnesses while under examination, should deter us from substituting our conclusion for his.

Assuming, as defendant’s counsel contends, that the burden of proving delivery in good order was upon plaintiffs, there was sufficient plausible evidence to discharge it, and with the question of the credibility of the witnesses determined in plaintiffs’ favor which we must assume for the purposes of the judgment appealed from, we are unable to say that the decision of the trial justice adversely to defendant was against the weight of evidence. All of the witnesses who testified to the condition of the waist and skirt at the time of, or immediately before delivery thereof to defendant, and those who testified to the custody of the garments after delivery were interested in the issue of the trial, plaintiffs and defendant directly so, and the employees of the former, as those of the hotel where defendant resided, indirectly, to avoid the imputation of carelessness or negligence or worse. Hence the statement of neither of these witnesses was conclusive. Elwood v. W. U. Tel. Co., 45 N. Y., 549; Kavanagh v. Wilson, 70 id. 177; Gildersleeve v. Landon, 73 id. 609: Wohlfahrt v. Beckert, 92 id. 490 ; Honegger v. Wettslein, 94 N. Y., 252 ; Canajoharie Nat'l Bk. v. Diefendorf 123 id. 191; 33 St. Rep. 389. That the egregious stains which disfigured the garments and destroyed their utility for wear were caused by the malicious act of some unknown person before delivery to defendant, because it appeared that two years before a strike had occurred among some of the employees of plaintiffs’ establishment, and that one of plaintiff^’ business cards was found pinned to the garments bearing the words “ dun for now ” in pencil, was conjectural merely and not a legitimate inference. Such a conjecture may afford a possible solution in the absence of accurate explanation. Other conjectures, however, are equally plausible, and neither should therefore, take the place of inference which is the inevitable conclusion reached by a rational mind from facts.

It was shown on plaintiffs’ behalf that between 7.30 and 7.45 o’clock in the evening of May 6th the waist and skirt, with the other garments, were folded and packed in the boxes in which they were subsequently delivered to defendant, and so carried out of plaintiffs’ establishment to the delivery wagon in the street in front thereof, and that at this time the garments were free from any stains. The employees in charge of the delivery wagon testified that the boxes remained unopened while in their custody, and that they were delivered at defendant’s address about 8 o’clock. The employees of the hotel where defendant resided testified to the receipt of the packages at 7.55 P. M., and to the delivery thereof in defendant’s hands at 8 o’clock, five minutes later, untampered with by them. The boxes containing the garments were not stained, and it is inexplicable how the stains could have been made without opening the boxes from the fact that the stains appeared on the exposed side of the garments when in wear, which, however, in packing had been folded in with the lining outside. These facts unquestionably justified the finding that the garments were delivered in good order. Defendant admitted the receipt of the packages at 8 o’clock and asserted that they remained in her room and custody unopened until 10 o’clock, when her maid, having returned at that time, she directed the packages to be opened and for the first time discovered the stains. Defendant further asserted that during the time the packages remained unopened and in her room she was constantly present and that no one had access to them. This fact, if so, refutes plaintiffs’ claim of the delivery of the garments in good order, and with apparently equally reputable witnesses it is difficult to reconcile their statements. It is possible, however, that defendant did leave her room, a fact which she may have failed to recollect, and that during the time of her absence the damage to the garments may have been committed by some unknown person with malevolent intent, or perhaps through carelessness, and from the inconclusiveness of the statements of a party in interest we must infer that the court below so found.

Ho error of sufficient gravity to require reversal of the judgment appears in the rulings of the trial justice. Keyser, a druggist, was examined as an expert witness for plaintiffs to determine the character of the stains. Defendant’s counsel objected to this testimony on the ground that the competency of the witness had not been shown, and after cross-examination moved to strike the testimony out on the same ground. Sufficient, however, appeared to show that the witness bad some familiarity with the subject matter of his examination, and in such a case the appellate court should not reverse. The competency of an alleged expert witness is a preliminary question of fact to be determined by the trial court, and its determination that the witness is competent will be generally regarded as conclusive unless there is no evidence whatever, or no sufficient evidence, to support it, or the determination is contrary to the evidence. Slocovich et al. v. Orient Mut. Ins. Co., 108 N. Y., 56, 62; 12 St. Rep. 806. That the witness had abandoned his studies as a chemist and devoted himself to the occupation of a druggist, vending drugs and toilet articles exclusively, did not render him any less competent. As the court of appeals said in Bearss v. Copley, 10 N. Y., 93, 95, “ There was nothing in the change of employment from tanning hides to the study of law which would necessarily deprive him of the skill acquired in his original trade.” See also Roberts v. Johnson, 58 N. Y., 613.

The trial justice asked the witness, “Do you consider yourself an expert to testify whether a fluid upon a dress or skirt or waist is of carmine or not ? ” This was certainly error as involving the substitution of the witness’ opinion for the fact to be determined by the court, Rogers’ Expert Test. § 17, but however that may be no objection was made to the question.

A card was produced bearing the words legibly in pencil “ Dun for now,” and it was contended that other writing was discernible with a microscope. For the purpose of determining this the defendant’s counsel requested an adjournment, alleging surprise, which the justice refused. This was no error. The subject matter of the proposed inquiry was not one proper for expert testimony and was determinable by the justice from inspection.

The judgment should be affirmed with costs.  