
    Lewis N. Northam, as Assignee for the Benefit of Creditors of Wallace G. Northam, Appellant, v. The Dutchess County Mutual Insurance Company of Poughkeepsie, N. Y., Respondent.
    
      Setting aside a verdict as against the weight of evidence — where a witness on a second trial testifies to a fact, for the want of proof of which a judgment on the first • trial was reversed.
    
    Upon the original trial of an action upon a policy of fire insurance the plaintiff recovered a judgment. On an appeal to the Court of Appeals the judgment was reversed and a new trial granted on the ground that the plaintiff could not recover unless certain testimony was given. On the second trial the plaintiff’s assignor modified the testimony given by him upon the original trial by adding thereto the testimony which the Court of Appeals declared essential to a recovery.
    The witness was not corroborated as to the additional testimony, and was unable on cross-examination to point out the respect in which the testimony given by him upon the second trial differed from that given by him upon the former trial.
    The case was submitted to the jury and resulted in a verdict for the plaintiff. Meld, that the trial court did not abuse its discretion in setting aside the verdict as against the weight of evidence.
    Spring and Williams, JJ., dissented.
    Appeal by the plaintiff, Lewis N. Nortliam, as assignee for the benefit of creditors of Wallace G. Northam, from an order of the Supreme Court, made at the Jefferson Trial Term and entered in the office of the clerk of the county of Jefferson on the 18th day of July, 1901, granting the defendant’s motion to set aside a verdict previously rendered in favor of the plaintiff, upon the ground that it was against the weight of evidence, and granting a new trial.
    The action was commenced on the 4th day of March, 1899, to recover upon an insurance policy issued by the defendant to plaintiff’s assignor, which purported to insure certain buildings owned by such assignor against loss by fire. ■
    
      JST. F. Breen, Levi H. Brown and A. H. Sawyer> for the appellant.
    
      Horace Me Quire, for the respondent.
   McLennan, J.:

The. action was originally tried in January, 1900, before the-court and a jury, and resulted in a judgment in favor of the plaintiff for the value of the property destroyed. Upon, that trial the plaintiff’s assignor testified (in which he was corroborated by other witnesses and it was established to the satisfaction of the jury, notwithstanding the denial by the defendant’s agent) , that after he executed and delivered a general assignment for the benefit of creditors to the plaintiff, he called upon defendant’s agent, informed him of the fact, and stated in substance- that the assignee desired the insurance kept in force and would pay the fees therefor; that the policy was. not in his possession, but was in a safe of which a former partner had possession; that defendant’s. agent stated in substance that the insurance would be kept in force; that it would be all right. The agent, however,- did not make any indorsement on the' policy in respect to the change of interest in the property insured, as required by the terms of the policy, and it was not proven that the agent agreed to make-such indorsement. An appeal from such judgment was taken by the defendant to the Appellate Division, where it was in all things affirmed (51 App. Div. 618), and judgment was entered accordingly. From such judgment of affirmance an appeal was taken-to the Court of Appeals, and the judgment was reversed and a new trial granted, with costs to the appellant to abide event. (166 N. Y. 319.) The Court of Appeals held in substance that the .plaintiff was not entitled to recover, because it was not proven that defendant’s agent “ agreed to make the necessary indorsement and failed to do so, although the policy was within his reach for the purpose.” Upon the new trial, which is now the subject of review, the plaintiff’s assignor, in addition to what he stated upon the former trial, testified in substance that defendant’s agent did agree to make the indorsement upon the policy, and that the agent said it was where he could get it for that purpose.

Upon this trial the plaintiff called several witnesses who corroborated his assignor in the statement that he had a conversation with defendant’s agent at the time alleged by him, relating to the subject of insurance, but no'ne of such witnesses pretend to have heard defendant’s agent say that he would make the indorsement upon the policy or issue a slip to that effect, as testified to by plaintiff’s assignor. It is clear that the addition made by the witness to his former testimony was such and only such as was in effect declared to be necessary by the .Court of Appeals in order to entitle the plaintiff to recover, and it is perfectly clear that such testimony? either in form or substance, was not given by such witness upon the former trial. This fact alone was sufficient, without explanation, to challenge the credibility of the witness and the truthfulness of his story. The defendant’s agent positively denied that any conversation took place between him and plaintiff’s assignor in respe,ct to a renewal or continuance of the insurance in the interest of the assignee, but in addition, and what perhaps is of the most significance as bearing upon the questions involved upon this appeal, is the cross-examination of the witness as disclosed by the record in this case. He gave the testimony upon his direct examination substantially as given by him upon the former trial, except that he added what was declared to be essential by the Court of Appeals. Upon cross-examination he was unable, although repeatedly requested so to do by defendant’s counsel, to point out or state what difference there was between the testimony then given and that given by him upon the former trial.. He could not state, and did not state, in what respect he had changed it, what he had added to it, but when again permitted to recite the whole conversation, he gave it precisely as upon his direct examination, the important words included. Again, we think such examination was of a character to challenge the credibility of the witness and the truthfulness of his story.

Upon all the evidence it cannot be doubted that a question was presented for the determination of the jury, and their verdict must ultimately determine the facts. (McDonald v. Metropolitan Street Railway Co., 167 N. Y. 66.)

We think, however, that, considering all the circumstances and all the evidence, it cannot be said that the learned trial court abused its discretion in determining that the verdict rendered by the jury was against the weight of evidence, and in setting the same aside in th& exercise of such discretion. Whether the judge presiding at a trial by a jury properly or improperly exercises the*power which is given, him by law to set aside a verdict (Code Civ. Proc. § 999) on the ground that it is against the weight of evidence, must be determined from the facts and circumstances of each case. As was said in the McDonald Case (supra) : “ There is no standard by which to determine when a verdict may be thus" set aside. It depends upon the discretion of the court.”

In Lyons v. Connor (53 App. Div. 475), recently decided in the second department, the court said : While the learned trial justice could not take the case from the jury unless the fact is either un contradicted or the contradiction is illusory,’ this did not at all hamper his right to set aside the verdict as against the weight or the preponderance of the evidence. (Luhrs v. Brooklyn Heights R. R. Co., 11 App. Div. 173; Bagley v. Bowe, 105 N. Y. 171.) The justice presiding at the Trial Term is acute, experienced and learned. He saw the witnesses and was not confined, as we are, to the record of their words. If he were convinced that the preponderance of evidence or the interests of justice required him. to set aside the-verdict, he acted properly. (Ferguson v. Gill, 74 Hun, 566,)”

. In Glassford v. Lewis (82 Hun, 46) Martin, J., in writing the opinion of the court, cites with approval the following language: It is at all times a grave question for an appellate court to reverse,, on the ground of error, an order made by the trial judge setting aside the verdict as against the weight of evidence.”

In McConnell v. N. Y. C. & H. R. R. R. Co. (63 App. Div. 545), recently decided by this court, although holding that the evidence in that case presented a question of fact to be determined by the jury, and although we did not have the opportunity of seeing the witnesses, but were confined to the record of their words', it was. held that the verdict should be set aside because against the weight of evidence, and the judgment in favor of the plaintiff was reversed, upon that ground.

Many other cases might be cited which conclusively establish. that it was not an abuse of discretion on the part of the learned trial court to set aside the verdict of the jury in this case. (Lund v. Spencer, 42 App. Div. 543; Edall v. New England R. R. Co., 40 id. 617; Williams v. D., L. & W. R. R. Co., 66 id. 336.)

We think the provision in the Order appealed from as to the costs, to be paid by the defendant does not err as against plaintiff.

It follows that the order appealed from should be affirmed, with, ten dollars costs.

Adams, P. J., and Hiscook, J., concurred. Dissenting opinion by Spring, J., in which Williams, J., concurred.

Spring, J.

(dissenting):

On the first trial of this action Wallace G. Northam did not testify that the insurance agent, Goodale, agreed to make an indorsement upon the policy denoting the transfer of title to the insured property to the assignee. The Court of Appeals, in its opinion granting a new. trial, lays stress upon this omission. Upon the trial we are now reviewing Northam testified that Goodale did agree to-make the indorsement. Goodale denied that he made any such promise. He goes farther, however, in his testimony and denies, that he ever had any conversation with Northam upon that subject.. He is contradicted in this statement not only by Northam, but also by William Doughton, who testified that at about the time given as the date of the conversation and at the place he overheard talk between these two men concerning insurance, in which Northam said he had made an assignment and wished his insurance changed, and that Goodale thereupon answered that the assignee would have the benefit from that time.” Also another witness testified that at the time and place stated he saw Northam and Goodale in conversation. Northam, therefore, is corroborated in a measure by two witnesses,, and their testimony is pointedly opposed to that of the insurance agent.

The fact that Northam did not include in his previous story the statement which now seems to cast suspicion upon it is not sufficient to take from the jury the determination of this issue of fact. The credibility of these witnesses is for the jury. (Williams v. D., L. & W. R. R. Co., 155 N. Y. 158; Odell v. Webendorfer, 60 App. Div. 460.)

In the case last cited the plaintiff changed his testimony on a new trial to meet the criticism of the Appellate Division on the first trial, and recovered another verdict, which was set aside by the trial judge. The Appellate Division, on appeal, reversed the order and granted a new trial upon the ground that the credibility of the witness, notwithstanding his testimony may have been altered to meet a new emergency, was for the jury.

In the WilUams case the plaintiff testified directly contradictory to his affirmative testimony on the former trial, and the contradiction related to the essence of the issues, and was necessary to enable his case to be submitted to the jury, because of the decision of the Court of Appeals on the earlier appeal. A nonsuit was granted-, and the judgment entered thereon was affirmed' by -the- Appellate Division and reversed by the Court of Appeals. The court, after forcibly presenting the facts, which indicated that the plaintiff had sworn falsely, say that his credibility was for the jury, and that it was for tlienij and not for the court, to determine upon which trial the witness testified truthfully, the court adding: “ It is the province of the former, not the latter, to weigh the testimony given. in the light of all the circumstances surrounding it.” And again: “ In this case the plaintiff gave testimony which,, if credited by the jury, would have entitled him to a verdict. The trial judge apparently did not credit it, and it is quite likely that his view of the testimony was the correct one, but the difficulty with the situation is that, under our method of procedure, it was the province of the jury, not the court, to say whether his testimony was entitled to belief.”

In those cases there was apparently a much more flagrant attempt to fit the testimony to the changed condition than in the present one. Northam did not contradict his testimony On the former trial, but supplied an important fact omitted, although essential to a recovery; and he is borne out to a certain extent in his narrative by two other witnesses. It is also to be observed that apparently Northam has no direct interest in the present case, as he has made a general assignment for the benefit of creditors, and this action is being prosecuted by the assignee for their benefit.

I realize that much latitude should be allowed a trial judge upon motions of this kind, and have high regard for the fairness and discernment of the learned judge who granted this motion, but, as I view the case, it presented a question of fact for the jury, and that the court exceeded its authority in overturning the verdict, as it was not against the weight of evidence.

. Where there is a clear question of fact, it is not the province of the court to set aside the conclusion reached by the jury because it. is not in accord with the judgment of the trial judge. I think the ■order should be reversed and the verdict of the jury sustained.

Williams, J., concurred.

Order affirmed, with costs.  