
    Augustus S. Kidder, App’lt, v. Morris Jones, Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 3, 1895.)
    
    Appeal — Inconsistent judgment.
    Where, in an action for injuries caused by a collision between the plaintiff’s and defendant’s wagons, the latter interposes a counterclaim for damages from the same collision, and the court finds that the accident was caused by plaintiff’s negligence, he cannot complain that-defendant’s counterclaim was also disallowed.
    
      Appeal from a judgment for defendant.
    
      Frederick L. Gilbert, for app’lt; Herman Joseph, for resp’t.
   Bischoff, J.

— By reason of a collision between their vehicles, both parties to this action claim damages; the plaintiff for sums expended in repairs to his property, the defendant for the value of a diamond lost from a finger ring. The justice below gave judgment for defendant upon plaintiff’s cause of action, disallowing the counterclaim, and the plaintiff appeals. Ample evidence of the plaintiff’s negligence is afforded by the testimony of defendant’s witnesses, in fact it thereby appears that the farmer’s carelessness alone rendered the accident unaviodable, and upon the simple conflict presented by the contradiction of this testimony the finding of the justice concludes. But the plaintiff contends that the judgment is inconsistent, in that no damages were awarded upon his counterclaim. True, the collision was due solely to plaintiff’s negligence, if defendant’s witnesses are to be believed, and the j udgment establishes the fact that credit was given to their testimony; but, while the justice might with propriety have rendered judgment for substantial damages in defendant’s favor, there was no inconsistency, as the term is used, in his not doing so. It was, at most, an omission of which the defendant might have complained, but the plaintiff’s negligence being established, he was not to assail the judgment because insufficiently unfavorable. Moreover, the evidence as to the defendant’s loss, although uncontradicted, might well have been discredited as the uncorroborated testimony of a party in interest, Frankel v. Wolf, 7 Misc. Rep. 190; 57 St. Rep. 536; Wilson v. Wyandance S. Improvement Co., 4 Misc. Rep. 605; 54 St. Rep. 242; Davey v. Lohrmann, 48 St. Rep. 716, notwithstanding that the weight of evidence as to the circumstances surrounding the accident was against the plaintiff’s contention. Defendant offered only his own testimony as to the ■ loss of the diamond, and it appeared that its absence was not discovered until half an hour after the collision; therefore, the justice might not have been satisfied that the accident in question was the proximate cause of the loss.

Judgment affirmed, with costs.

All concur.  