
    PENNSYLVANIA STEEL CO. et al. v. NEW YORK CITY RY. CO.
    (Circuit Court, S. D. New York.
    May 28, 1909.)
    Equity (§ 410) — Findings of Master — Review on Exceptions-
    The finding of a special master adverse to a claim for damages, involving an issue of fact which depended upon the credibility of witnesses who testified before him, confirmed.
    [Ed. Note. — For other cases, see Equity, Dec. Dig. § 410.]
    In Equity. On exceptions to report of special master.
    John M. Gardner, for claimants.
    Royal H. Weller, for receivers of New York City Ry. Co.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes*
    
   LACOMBK, Circuit Judge.

This matter lias been argued as if the cause had been taken from a jury and decided by the court as presenting questions of law only. That is an erroneous assumption. The master sits as a jury to pass upon all conflicting testimony, and after hearing the witnesses he “disallowed the claim.” The question is one of the credibility of the witnesses. The special master saw and heard them on the stand, and evidently did not believe that the car had piactically stopped, and that while plaintiff was about to step to the ground the conductor, although informed that he wished to alight, suddenly rang two bells and pushed him back against the dashboard. There is not sufficient in the record to warrant a reversal of this conclusion by a court which has not had the advantage of observing the demeanor of the witnesses on the stand. Indeed, it rather indicates that some of them have modified their testimony since it was given on the first trial, when the events were fresh in their memory.

The exceptions are overruled, and report confirmed.  