
    Benjamin Berkowitz, Respondent, v. Solomon Schlanger, Appellant.
    (Supreme Court, Appellate Term,
    January, 1911.)
    Instructions — Power of court and necessity — As to credibility of witnesses — Interested witnesses.
    New trial—Grounds — Rulings and instructions at trial — Remarks of judge calculated to prejudice jury.
    In an action for assault and battery against a saloon-keeper alleged to have been committed in the latter’s saloon, where the plaintiff .is the only witness in his own behalf, though twenty-five or thirty people were present at the time of the alleged assault and battery, and the defendant, in addition to his own testimony, produced 'that of his wife and barkeeper and four customers who were present to prove that he did not strike plaintiff, it is error for the court to charge that these four witnesses, not related to or employed by the defendant, were friends of the defendant and that it is the duty of the jury “ to carefully scrutinize all that interested testimony, in order that you may determine the degree of credibility you will attach to the same.”
    In such a case, where the court, in commenting upon the testimony, makes frequent use of the expression the defendant “would have you believe ” in such a manner as to indicate to the jury 'his opinion that the defendant’s evidence was not worthy of belief, the verdict for the plaintiff should be set aside.
    And where the court in its charge states that the defendant and his witnesses “would have you believe that he is here to-day committing perjury, in charging against the defendant in this case the result of those injuries,” it tenders to the jury a false issue and diverts their minds from their true duty.
    Appeal by the defendant from a judgment of the City Court of the city of Mew York entered in favor of the plaintiff upon the'verdict of a jury and from an order denying a motion for a new trial.
    Morris Meyers, for appellant.
    Samuel Deutsch, for respondent.
   Page, J.

This is an action to recover damages for assault and battery, alleged to have been committed upon the plaintiff by the defendant in the latter’s saloon.

The plaintiff testified that the defendant struck him twice on the shoulder, fracturing his collar bone. As to the occurrences in the saloon he was the sole witness in his behalf, although it appeared that there were from twenty-five to thirty people present at the time.

The defendant denied having struck the plaintiff, and was corroborated by the bartender, his wife, and four customers who were present at the time. After correctly charging as to the burden of proof and the rules applicable to the weight of evidence, the trial judge said: “ Mow as to the parties who have been called here, certainly the plaintiff is an interested party to this litigation; likewise is the defendant and his wife; and his barkeeper is more or less interested. So far as these other witnesses are concerned, the testimony is that they are regular habitues of the saloon in question. They are friends of the defendant in this action, and it is your duty, in determining where the truth lies in this case, to carefully scrutinize all that interested testimony, in order that you may determine the degree of credibility you will attach to the same.” Defendant’s counsel took exception to the portion of the charge that related to the four witnesses who were not related to or employed by the defendant. The charge was erroneous. “ The interest which the law recognizes as affecting credibility is that which is calculated to create Mas or inclination of mind founded on some such relation to the matter in controversy as will give rise to some possible pecuniary gain or loss from the event.” Rheinfeldt v. Dahlman, 19 Misc. Rep. 162, 167. Tested by this standard the witnesses were not interested, and the charge was prejudicial to the defendant. The court should have charged that these witnesses were disinterested, as requested by defendant’s counsel.

The court then proceeds to comment on the evidence and calls the jury’s attention to certain particulars wherein the judge stated the plaintiff had not been contradicted, hut as to some of which, as a matter of fact, he had been, and then said: How the defendant tells you a story that is diametrically opposed to that given by the plaintiff. He would have you believe * * "x" ” and, after stating defendant’s claim, “ How as I have stated, you have a right to pass upon the probabilities of the story told you by the witnesses in this case. Is it reasonable to believe, as claimed by the defendant * * * ” -And again, “ the defendant would have you believe, from the testimony in this case, that the plaintiff was never struck by the defendant, hut that he sustained and met with this broken collar-bone as the result of an automobile accident. They would have you believe that ■he is here to-day committing perjury, in charging against the defendant in this case the result of those injuries * -x- »_» ppe judge, by the reiteration of the words “ he would have you believe,” when considering defendant’s testimony, very clearly indicated to the jury his opinion that the defendant’s evidence was not worthy of belief; and, in the last clause above cited, in stating that the defendant would have the jury believe that the plaintiff was committing perjury tendered a false issue and diverted their minds from their true duty; which was to consider all of the testimony, to weigh it carefully, to test the credit to be given to a witness by his apparent intention to speak the truth and by the accuracy of his memory, to reconcile, if possible, conflicting statements as to material facts and, in such ways, to get at the truth and to reach a just verdict upon the issues.” Smith v. Lehigh V. R. R. Co., 170 N. Y. 394, 400.

Whether the plaintiff had committed perjury was not for this jury to determine. On the whole the charge was very prejudicial to the defendant. The judge practically told the jury that he believed they should find a verdict for the plaintiff. Judges should bear in mind that the jury is to pass on the facts and the credibility of the witnesses, and that the judge’s duty is to submit the questions to them in a fair and impartial charge, laying down such rules as the law prescribes for their guidance.

If the case warrants it, he may direct a verdict; but, ■ where there are controverted questions of fact, they are to be determined by the jury and not by the judge. If he believes the verdict is against the evidence, or contrary to the weight of evidence, he may set it aside; hut in the first instance the jury should determine the questions of fact.

The regard that the jury have for the opinions of the judge imposes upon him great caution in expressing his opinion upon the evidence, that he may not substituto his judgment for that of the jury.

In view of the portions of the charge above set forth, the defendant was deprived of a fair and impartial trial of the issues; and the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

Seabuby and Bijub, JJ., concur.

Judgment reversed.  