
    Samuel Haas et al., Respondents, v. Mary Green, Appellant.
    (New York Common Pleas—Additional General Term,
    February, 1894.)
    In an action for garments sold and delivered, the defendant claimed that. some of them were delivered in a damaged condition. The plaintiffs’ evidence was to the effect that they were packed in boxes, were then in good condition, and placed in the delivery wagon; that the boxes remained unopened until they were delivered at the hotel where defendant resided, and were delivered to defendant by the hotel employees, untampered with by them. The defendant admitted the receipt of the packages, and testified that they remained in her room unopened for two hours, during which time she was constantly in the room, and no one else had access to them, and that upon opening them the articles in question were found to be stained. Held, that as the evidence was conflicting, and all the witnesses interested, the finding of the justice in favor of plaintiffs would not be disturbed.
    Where it appears that an expert witness had some familiarity with the subject of his examination, an appellate court will not reverse on the ground of the reception of his evidence.
    
      The fact that a witness had abandoned his studies as a chemist, and devoted himself to the business of vending drugs and toilet articles exclusively, does not render him any less competent as an expert.
    Appeal from a judgment of the District Court in the city of New York for the eleventh judicial district in plaintiffs’ favor.
    Action to recover the agreed price of sundry garments sold and delivered to defendant.
    
      Edw. J. McGa/nney, for respondents.
    
      Win. IF. Cohen and JBeny. Tuslea, for appellant.
   Bischoff, J.

Plaintiffs sued to recover the sum of $197, the agreed price of sundry garments sold and delivered by them to defendant. Defendant conceded her indebtedness for $115, but disputed plaintiffs’ right to recover the remaining eighty-two dollars, the price of a waist and skirt, on the ground that they had been delivered to her in a damaged condition and that she had tendered a return thereof. The contest on the trial, therefore, was narrowed down to the inquiry whether the waist and skirt were damaged before delivery thereof to defendant, or thereafter. Concerning the subject-matter of this inquiry nineteen witnesses were examined, and the court below determined the issue in plaintiffs’ favor upon conflicting testimony. No purpose of general interest can be subserved by a discussion of the evidence in detail. It has, however, received our careful scrutiny, and while it may he that, if we had been called upon to decide in the first place, we would have reached a conclusion at variance with that of the justice below, we are, notwithstanding, unable to say that he erred, since it was his peculiar province, no jury trial having been demanded, to determine the degree of credibility to which the statements of the several witnesses were entitled, and the superior advantage of the trial justice in this respect, of personally observing the witnesses while under examination, should deter us from substituting our conclusion for his.

Assuming, as defendant’s counsel contends, that the burden of proving delivery in good order was upon plaintiffs, there was sufficient plausible evidence to discharge it, and with the question of the credibility of the witnesses determined in plaintiffs’ favor, which we must assume for the purposes of .the judgment appealed from, we are unable to say that the decision of the trial justice adversely to defendant "was against the weight of evidence. All of the witnesses who testified to the condition of the waist and skirt at the time of, or immediately before, delivery thereof to defendant, and those who testified to the custody of the garments after delivery, were interested in the issue of the trial, ydaintiffs and defendant directly so, and the employees of the former, as well as those of the hotel where defendant resided, indirectly, to avoid the imputation of carelessness or negligence, or worse. Hence, the statement of neither of these witnesses was conclusive. Elwood v. W. U. Tel. Co., 45 N. Y. 549 ; Kavanagh v. Wilson, 70 id. 177; Gildersleeve v. Landon, 73 id. 609 ; Wohlfahrt v. Beckert, 92 id. 490; Honegger v. Wettstein, 94 id. 252; Canajoharie Natl. Bank v. Difendorf, 123 id. 191. That the egregious stains which disfigured the garments and destroyed their utility for wear were caused by the malicious act of some unknown person before delivery to defendant, because it appeared that two years before a strike had occurred among some of the employees of plaintiffs’ establishment, and that one of plaintiffs’ business cards was found pinned to the garments bearing the wrords “ dun for now ” in pencil, was conjectural merely and not a legitimate inference. Such a conjecture may afford a possible solution in the absence of accurate explanation. Other conjectures, however, are equally plausible, and neither should, therefore, take the place of inference which is the inevitable conclusion reached by a rational mind from facts.

It was shown on plaintiffs’ behalf that between seven-thirty and seven-forty-five o’clock in the evening of May sixth the waist and skirt, with the other garments, were folded and packed in the boxes in which they were subsequently delivered to defendant, and so carried out of plaintiffs’ establishment to the delivery wagon, in the street in front thereof, and that at this time the garments were free from any stains. The employees in charge d£ the delivery wagon testified that the boxes remained unopened while in their custody, and that they were delivered at defendant’s address about eight o’clock. The employees of the hotel where defendant resided testified to the receipt of the packages at seven-fifty-five r. m., and to the delivery thereof in defendant's hands at eight o’clock, five minutes later, untampered with by them. The boxes containing the garments were not stained, and it is inexplicable how the stains could have been made without opening the boxes from the fact that the stains appeared on the exposed side of the garments when in wear, which, however, in packing had been folded in, with the lining outside. These facts unquestionably justified the finding that the garments were delivered in good order. Defendant admitted the receipt of the packages at eight o'clock, and asserted that they remained in her room and custody unopened until ten o’clock, when, her maid having returned at that time, she directed the packages to be opened, and for the first time discovered the stains. Defendant further asserted that during the time the packages remained unopened and in her room she was constantly present and that no one had access to them. This fact, if so, refutes plaintiffs’ claim of the delivery of the garments in good order, and with apparently equally reputable witnesses it is difficult to reconcile their statements. It is possible, however, that defendant did leave her room, a fact which she may have failed to recollect, and that during the time of her absence the damage to the garments may have been committed by some unknown person with malevolent intent "or perhaps through carelessness; and from the inconclusiveness of the statements of a party in interest we must infer that the court below so found.

Ho error of sufficient gravity to require reversal of the judgment appears in the rulings of the trial justice. Iieyser, a druggist, was examined as an expert witness for plaintiffs to determine the character of the stains. Defendant’s counsel objected to this testimony on the ground that the competency of the witness had not been shown, and, after cross-examination, moved to strike the testimony out upon the same ground. Sufficient, however, appeared to show that the witness had some familiarity with the subject-matter of his examination, and in such a case the appellate court should not reverse. The. competency of an 'alleged expert witness is a preliminary question. of fact to be determined by the trial court, and its determination that the witness is competent will be generally regarded as conclusive unless there is no evidence whatever, or no sufficient evidence, to support it, or the determination is contrary to the evidence. Slocovich v. Orient Mut. Ins. Co., 108 N. Y. 56, 62. That the witness had abandoned his studies-as a chemist and devoted himself to the occupation of a druggist, vending drugs and toilet articles exclusively, did. not. render him any less competent. As the Court of Appeals said in Bearss v. Copley, 10 N. Y. 93, 95“ There was nothing in the change of employment, from tanning hides to the study of the law, which would necessarily deprive him of the skill acquired in his original trade.” See, also, Roberts v. Johnson, 58 N. Y. 613.

The trial justice asked the witness : “ Do you consider yourself an expert to testify whether a fluid upon a dress or skirt or waist is of carmine or not ? ” This was certainly error, as involving the substitution of the witness’ opinion for the fact to he determined by the court (Rogers Expert Test. § 17), but however that may be no objection was made to the question.

A card was produced hearing the words legibly in pencil, Dun for now,” and it was contended that other writing was discernible with a microscope. For the purpose of determining this defendant’s counsel requested an adjournment, alleging surprise, which the justice refused. This was no error. The subject-matter of the proposed inquiry was not one proper for expert testimony, and was determinable by the justice from inspection.

The judgment should be affirmed, with costs.

Gieqerioh, J., concurs.

Judgment affirmed, with costs.  