
    LEO SCHLESINGER, and Another, Appellants v. THE SPRINGFIELD FIRE AND MARINE INSURANCE COMPANY, Respondent.
    
      New trial — Court not bound to grant merely because both parties move for it; where the court refuses to grant a motion of one party for a new trial although the other party consented thereto, the consenting parly is not aggrieved by thé denial of the motion, and the order of denial is not appealable from by him—Uncontradicted evidence, what not to be considered such, although there is no direct affirmative evidence offered—Result of calculations, evidence of, when inadmissible—Questions put to a witness on cross-examination tending to elicit evidence bearing upon his direct evidence on a material matter are properly allowed; the rule that a witness cannot be cross-examined as to immaterial facts unless such fads tend to an impeachment of the witness’ credibility generally as a witness, has no application to such a case—Non-acceptance by one party of a proposition made by the other for a view'of premises by the jury, effect of.
    
    Plaintiffs moved for a new trial on the exceptions taken by them, for insufficiency of damages and because the verdict was contrary to the evidence and contrary to law; the defendant also moved for a new trial upon the exceptions taken on its behalf, for excessivenes's of damages and because the verdict was contrary to the evidence and contrary to law. Both motions were denied. The order on defendant’s motion recited that plaintiffs consented in open court that it be granted. Held, that the court was not bound to grant a new trial by the mere fact that both parties moved for it; also that the denial of defendant’s motion was not a subject of complaint by plaintiffs, and the order entered thereon was not appealable from by them.
    One of the questions involved was as to the quantity and value of goods destroyed by a fire. The most important witnesses for plaintiffs on this subject were one of the plaintiffs and men who had been and were at the time of the trial in the employ of the plaintiffs. These employees made the documents on which plaintiffs’ case in part (that is as to the goods on hand at the time of the fire) rested. These documents were not made according to the usual business methods. Defendant introduced no direct proof as to the quantity and value of the goods destroyed. There was, however, much evidence pro and con as to the quantity of the mass of debris remaining after the fire apart from goods capable of identification and as to its constituents. Held, that the jury was not bound to find the witnesses on behalf of plaintiffs or any one of them to be credible or exact; that it was for them to say whether the documents were correctly or exactly made; that under the evidence the jury were at liberty to find that there was not on hand at the time of the fire as many goods as the witnesses for the plaintiffs had testified to by a practically certain amount; and as a result that there was not uncontradicted evidence which entitled plaintiffs to recover a larger sum than the amount of the verdict.
    One of the plaintiffs was asked “What was the amount of loss and damage sustained by the plaintiffs by reason of the fire ? ” Held, inadmissible as calling for the result of a calculation based on such facts as the witness might consider proper for that purpose.
    One of the plaintiffs was asked on cross-examination how many other fires he had had. He had testified on the direct that he had had experience in judging what was indicated by refuse after fires. Held, that the question was proper as calling for evidence tending to show that his experience was acquired under circumstances which would affect his power to judge impartially.
    In the course of the trial plaintiffs proposed that the jurors go uptown and inspect the entire remains of the fire. The defendant said nothing to the proposition. Held, that no inference or opinion whatever was thereby created in favor of the calculations and claims of the plaintiffs, and that a charge to that effect was correct.
    Before Sedgwick, Oh. J., and O’G-obman, J.
    
      Decided May 5, 1890.
    Appeal by plaintiffs from judgment entered upon verdict for plaintiffs, and from order denying plaintiffs’ motion for a new trial, and from an order denying defendant’s motion for a new trial, which latter order recited that plaintiffs consented to the granting of the motion.
    The facts sufficiently appear in the opinion.
    
      Benno Loewy, attorney and of counsel, and Frederick B. Coudert of counsel, for appellant, argued :—
    I. The damages assessed by the jury are inadequate, and the verdict for the amount rendered is against all the evidence in the case.
    II. There is nothing whatever in the case to support the verdict for the amount rendered.
    
      (in support of these points, counsel submitted an able and elaborate analysis of the evidence.)
    III. The plaintiffs’ witnesses being unimpeached and not contradicted by any witness, but being corroborated by some of the defendant’s witnesses, and by all the facts and circumstances in the case, and the verdict being against all the evidence, and having no support in any evidence the motion of the plaintiffs for a new trial on the minutes should have been granted. Newton v. Pope 1 Cow. 109 ; Lomer v. Meeker, 25 N. Y. 361; Ellwood v. Western Union Telegraph Co., 45 lb. 549 (553) ; Hodges v. The City of Buffalo, 1 Abb. N. C. 356 (360) ; Halpin v. Third Avenue Railroad Company, 40 N. Y. Superior Court, 175 ; Clark v. Mechanics’ National Bank, 8 Daly, 481; Desh v. Barnes, 13 Weekly Dig. 251.
    IY. Again, the verdict is wholly inconsistent—it should have been either for the defendant, or for the full amount of two thousand dollars—it should therefore have been set aside. McDonald v. Walter, 40 N. Y. 551; Platz v. City of Cohoes, 8 Abb. N. C. 392; McKeever v. Weyer, 11 Weekly Dig. 258 ; Sternfeld v. Park Fire Ins. Co., 50 Hun, 262.
    Y. But independent of the foregoing reasons, the verdict should have been set aside because of errors made by the court on the trial and in the charge to the jury, (a.) Mr. Schlesinger, when on the stand, was asked on his direct examination to state what was the amount of loss and damage sustained by his firm by reason of the fire. This question was overruled on the ground that it called for a conclusion of law ; and the plaintiff duly excepted to this ruling. This ruling was erroneous. The question did not involve the opinion of the witness, nor did it call for him to deduce any conclusions of law ; but it was simply for him to state a fact within his own knowledge. The evidence was admissible under the following authorities. Sweet v. Tuttle, 14 N. Y. 
      465 ; De Witt v. Barley, 17 lb. 340 ; Clark v. Baird, 9 lb., 184 ; Robertson v. Knapp, 35 lb. 91 ; De Wolf v. Williams, 69 lb. 621. (b.) On his cross-examination Mr. Schlesinger was asked how many other fires he had had. This question was allowed by the court, although objected to by the plaintiffs, and the plaintiffs duly excepted. This was also error. It is a general rule of evidence, that a witness on cross-examination cannot be cross-examined as to immaterial facts, unless such facts tend to discredit him or his testimony. 1st Greenleaf on Evidence, § 458 ; Kober v. Miller, 38 Hun, 184 ; Ryan v. People, 79 N. Y. 593 ; People v. Irving, 95 lb. 544. Counsel in asking this question could have had but one object, namely : to prejudice the jury against Mr. Schlesinger by showing the fact that he had had other fires. (c.) The court charged the jury, as requested by defendants’ counsel, that “ the objection of the defendant to the jurors going uptown to inspect the entire remains of the fire, does not create any inference or opinion whatever in favor of the calculations and claim of the plaintiffs in this case.” This offer of the plaintiffs was, as is evident, made in perfect good faith. The main point in controversy was the character and amount of this debris ; testimony was offered by both sides on ' this question. The jury, it is manifest, could have been better able to decide such question if they had been allowed to inspect this debris. While the offer of the plaintiffs and its rejection by the defendant was not conclusive, still the fact that the plaintiffs made it and the defendant rejected it was a circumstance in the case, and a circumstance which the jury should have considered, and from which they would have been justified in drawing some' inference favorable to the plaintiffs. The making of it certainly tended to show that the plaintiffs believed they were right in claiming the amount they did. This portion of the charge was liable to mislead the jury, and from all that appears it actually did mislead them, for had ’ the jury seen the 110-120 cases and 50-60 barrels full of this debris, they would not have jumped at the conclusion that it was worth only $3,000.
    VI. A .motion for a new trial having been made by both the plaintiffs and the defendant, a new trial should have been granted. When a motion is made by one party and consented to by the other it is the duty of the court to grant the application, unless such motion asks something illegal or manifestly opposed to public policy. A new trial in an action involving the amount of the present one is not opposed to public policy. Courts of justice sit for the administration of justice, and when respectable counsel 'for both plaintiff and defendant unite in the opinion that justice has not been done, the court should respect that opinion. A new trial should, therefore, have been granted to one party or the other. Both moved for this, and the court denied both motions.
    
      Robinson, Scribner & Bright, attorneys, and Osborne E. Bright of counsel, for respondent, submitted a brief on the facts.
   By the Court.—Sedgwick, Ch. J.

The ground of plaintiffs’ dissatisfaction with the verdict is that, by the uncontradicted evidence in the case, the plaintiffs were entitled to recover a larger sum, than the amount of the verdict.

The plaintiffs claim, as a matter of right, that the judge below should have granted a motion for a new trial because both parties moved for a new trial.

The motions were several and also the orders respectively. The order on the defendant’s motion declares that the plaintiffs consented to the granting of that motion. Although the judge refused to consider himself obliged to grant the order, this is not a subject of complaint by the plaintiffs. If it is assumed that defendant might claim a right to have the. new trial granted, he has not appealed and the plaintiffs did not make the motion then denied. The order denying the plaintiffs’ motion does not appear to have been made after the defendant had consented to a granting of the motion. Indeed the proceedings on the trial show that there was no such consent. Each party made a motion, but each did not consent that the motion by the other should be granted. I therefore think that the plaintiffs were not entitled to a new trial on the ground that has been examined.

As to the position that the evidence taken altogether shows that the plaintiffs’ loss and damage was greater than the amount assessed by the jury, I am of opinion that it is not valid. There was not a witness whose testimony the jury was bound to find to be credible or exact. The most important witnesses for the plaintiffs were one of the plaintiffs and men who had been in the employment of the plaintiffs, These servants were at the time of the trial employed by the plaintiffs. They had made the documents on which the plaintiffs’ case in part rested. Whether they had made them correctly or exactly was for the jury to say. The documents were not made according to the usual methods of business. The plaintiffs’ book contained no merchandise account. Instead of proving the amount of merchandise on hand at the time of the fire, by the production of the ordinary books of account, the plaintiffs produced a carelessly made, so far as form is concerned, inventory of goods on hand made in the January before the fire, which was in the month of July, and to show the changes of the stock in the meantime, numerous slips of paper made by the plaintiffs’ clerks, were, put in evidence. The slips that were of a white color contained, as plaintiffs claimed, statements of goods sent into the basement where the fire occurred. Slips of a yellow color contained, as claimed by plaintiffs, statements of the goods sent out of the basement. The jury was not bound to say, upon these facts and others that appeared, that the oral testimony or the documents in evidence incontrovertably showed the amount claimed by the plaintiffs as loss and damage, was correct.

But it is suggested for the plaintiffs that if the jury. rejected the testimony in favor of plaintiffs as incredible, there was no testimony which could have shown to.the jury what the actual loss was. I think that this overlooks the significance the . jury were entitled to give to the facts that concerned the mass that remained after the fire apart from the goods that might be identified for the purpose of the appraisement that was made. The jury had to consider the size of the piles of refuse as bearing upon the probable quantity of the goods subjected to the fire. The plaintiffs had gone into this matter and their witnesses had described the quantity of the refuse. There was opposing testimony as to this, and as to the constituents of the refuse. If the jury’s opinion was favorable to the defendant, they could find that, in consideration of their judgment as to what was really proved by the other evidence, the testimony as to the refuse showed that there was not on hand before the fire as many goods as the witnesses for plaintiffs had testified there were, by a practically certain amount. I am of opinion that there should not be a new trial on this ground.

I agree with the court below that the plaintiff who appeared as a witness could not be allowed to answer the question “ what was the amount of loss and damage sustained by the plaintiffs by reason of the fire.’’ This would have been the result of a calculation upon such facts as the witness chose to consider the proper facts to show the loss or damages, and therefore was inadmissible. For instance, he might have supposed that he should consider the facts he testified to and the documents in the case as furnishing indubitable data in estimating the loss.

The court allowed defendant’s counsel to ask of the plaintiff, how many other fires he had had ? If the question did not call for anythingbut an impeachment of the witness’s credibility generally as a witness, it may be assumed that the court should have overruled the question. But the witness had in his direct examination testified that he had had experience in judging what was indicated by refuse after fires as to the amount of goods represented by the refuse. It was, therefore, competent to show that such experience had been acquired in part by facts connected with fires in which he had an interest that would affect his power to judge impartially.

The defendant asked the court to charge that the objection of the defendant to the jurors going, uptown to inspect the entire remains of the fire, does not create any inference or opinion whatever in favor of the calculations and claims of the plaintiffs in this case. -The court made the charge and the plaintiffs excepted to it.

In the course of the trial the objection referred to in the charge had been made, or rather the plaintiffs made the proposition, adding “if the defendant consent.” The only refusal was made by the defendant saying nothing.

I am of opinion that the charge was correct. The defendant was not open to being charged with an apprehension that the inspection by the jury would result unfavorably to it until after it was determined that the defendant was bound to believe or did believe that the mass of the refuse at the time of the inspection would be the same in kind and quantity that it was after the fire. The defendant was not bound to have such a belief. But on general principles I think the defendant was not called to assist the plaintiffs in making evidence for themselves and then being held to explain, why they did not assist.

The judgment and order are affirmed with costs.

O’Gorman, J., concurred.  