
    Philip Kuntz, Respondent, v. Henry A. Howard, Appellant.
    Third Department,
    March 8, 1911.
    Trial—comment by counsel—master and servant — action for wages — evidence justifying recovery.
    Where a defendant has been a witness in his own behalf his conduct and testimony are proper subjects of comment by the plaintiff’s counsel while summing up.
    Even though the comments of the plaintiff’s counsel upon the defendant were improper, it is not ground for reversal where the judge promptly stated that they were improper and directed the jury to disregard them.
    Evidence in an action to recover for services rendered as a milk peddler examined, and held, that a finding by the jury that the defendant had not established a counterclaim based on the failure of the plaintiff to account for milk sold was warranted and that judgment for the plaintiff should be affirmed.
    Appeal by the defendant, Henry A. Howard, from a judgment of the County Court of Warren county in favor of the plaintiff, entered in the office of the clerk of said county on the 19th day of February, 1910, upon the verdict of a jury, and also from an order denying the defendant’s motion for a new trial made upon the minutes.
    
      James H. Bain and Benjamin Terk, for the appellant.
    
      Walter A. Chambers, for the respondent.
   Betts, J.:

The plaintiff, an employee as a milk peddler of the defendant, brought his action to recover for balance remaining unpaid him for wages. The defendant answered admitting wages not paid and asserted a counterclaim that the plaintiff had not fully accounted to defendant for milk sold. The case was originally brought in the City Court of Glens Falls and plaintiff recovered judgment there, the defendant appealing to the County Court. In the County Court the jury found a verdict for the plaintiff for the full amount claimed by him. The only question litigated was the counterclaim. There was sufficient evidence before the jury to justify the verdict rendered. The defendant relies principally upon an alleged summary of the books kept for the most part by the defendant and which summary showed an apparent shortage by the plaintiff in not fully accounting to the defendant for milk sold and money collected therefor of $413.80.

The plaintiff had worked for the defendant, who was a lawyer, cow owner and farmer, from April to November as a farmhand, and then from November, 1907, to December 31, 1908, as a milk peddler.

The defendant had a farm near the city of Glens Falls and produced a certain quantity of milk himself and other milk was bought from farmers or cow owners residing in that vicinity. The procedure was for this milk from outside owners to be brought to the defendant’s premises and placed in cans for peddling to some 150 customers. Some portion of it after being brought to the defendant’s place was bottled and placed in smaller cans by the defendant and sometimes by the plaintiff and sometimes by other persons, and then each day the plaintiff would start out peddling with large cans of milk containing forty quarts each and bottles and smaller cans of various sizes. The testimony varies as to whether the plaintiff actually knew of the amount of milk that he took from the defendant. He claims he did not, but usually accepted amounts stated by defendant and others. He dipped from the cans with a quart measure only, sometimes being required to measure out pints with that quart measure. Of course this would be a guess, with the likelihood that the customer who was present would get his full pint or more, while the defendant who was absent might have over one pint taken from liis supply, which would count against plaintiff in his returns to defendant. If defendant did not approve of this he should have furnished plaintiff with a pint dipper.

It appears that when the plaintiff commenced peddling milk he succeeded a milk peddler who was claimed to have been short in his accounts, and there were various milk tickets outstanding put out by the prior peddler. There is no clear evidence whatever that the defendant or the expert accountant had any way of determining how many milk tickets were then outstanding. When the plaintiff left the defendant’s employment various milk tickets were also left outstanding by him. It is from the testimony of the defendant alone as to the number of these milk tickets in both cases that the jury would be required to believe the table or summary put in evidence. The jury also had the books kept by the defendant and some books kept by the plaintiff before them with an opportunity of examining them in connection with said alleged summary.

The plaintiff claimed that in dealing out milk in the method that he was required to deal it out some loss would be occasioned by dipping. He produced two milk peddlers who substantiated this claim of his. He also claimed that a can of warm milk would be less when it had cooled, and that sometimes milk would freeze so that it could not be dipped out without waste.

The jury had an opportunity of seeing these parties and the wit nesses and the books and the statements claimed to have been compiled therefrom, and of hearing the expert accountant. Evidently they did not believe the accountant’s evidence nor accept his table. They did believe the evidence of the plaintiff and the milkmen whom he produced.

The defendant objected and excepted to certain language of the plaintiff’s attorney while summing up to the jury. The learned county judge promptly stated that the remarks were improper and directed the jury to disregard them. The defendant was a witness in his own behalf, and so his conduct and evidence in this case only was a proper subject for comment. There is nothing in the case to show that the ill-timed remarks of the plaintiff’s attorney were justified, but we think that the court did all that was required or necessary to be done to protect the defendant’s rights. Certain exceptions are presented by the defendant to the rulings of the learned county judge. We find no reversible error presented by these rulings.

The case presents a disputed question of fact. “ In reviewing the determination of a trial court upon questions of fact, an appellate tribunal is not warranted in reversing, upon the sole ground that, in its opinion, the trial court should have reached a different conclusion upon conflicting evidence. The beneficial exercise of the power of review in such cases, it is true, can be attained only by relieving the appellate tribunal from the obligation of adopting arbitrarily the conclusions of the trial court, but a proper regard for the advantages possessed by that court in the disposition of questions affecting the credibility of witnesses, and those depending upon the weight and authority of conflicting evidence, require great consideration to be accorded to its opinions. To justify a reversal it must appear that such findings were against the weight of evidence, or that the proofs so clearly preponderated in favor of a contrary result that it can be said with a reasonable degree of certainty that the trial court erred in its conclusions.” (Baird v. Mayor, etc., 96 N. Y. 567, 576.)

We see no reason for disturbing the verdict. We think the judgment should be affirmed, with costs.

All concurred.

Judgment and order unanimously affirmed, with costs.  