
    Kennedy, Respondent, v. The New York and Harlem Railroad Company.
    The court very reluctantly interferes with the verdict of a jury or the finding of a referee on questions of fact. But when the finding of a referee on a question of fact is made on the testimony of a single witness, and that testimony is, in its material parte, so suspicious in its nature, and so highly improbable in its details, as to produce a strong conviction that injustice has probably been done, the court, in furtherance of justice, will set aside the report, and allow a second trial on such terms as it deems just with reference to the peculiar facts and circumstances of the case.
    (Before Oakley, 0. J., Bosworth and Slosson, J.J.)
    Jan. 26;
    Feb. 11, 1854.
    This case came before the court upon an appeal by the defendant from a judgment entered on the report of a referee. The action was brought to recover the value of the contents of a trunk, put by the plaintiff on board of defendant’s cars, about the 15th of April, 1852. The action was tried on the 22d and 29th of January, 1853. The only witness who testified particularly as to the contents of the trunk was. James G-. Kennedy, a brother of the plaintiff. During his examination on the 22d of January, he testified that he helped pack the trunk, or stood by and saw it done ; and three or four days after the loss of it he made a written list of the articles in the trunk, but had forgotten to bring it with him, but he could testify to the articles from recollection. The hearing was then adjourned to the 29th of January, on which day he produced the said list, and which was as follows:—
    
      List of a/rtioles of clothmg lost by the ET. T. and JEL. Et. JR. Comgoam/, belonging to flahvbiff.
    
    4 pair of pants, (2 pr. at $5, and 2 pr. at $3,) . $16 00
    1 black satin vest, . 5 00
    5 shirts at $1, . 5 00
    1 frock-coat at $18, . 18 00
    1 do. at $15,. 15 00
    2 pair socks, 25c. pair, 0 50
    1 satin apron and rosette, 2 50
    1 neckerchief, .... 1 50
    1 silk pocket handkerchief, 0 75
    1 hat and clothes brushes, 1 00
    1 razor, glass, and pair steelyards, 2 00
    3 pair of suspenders, 1 00
    1 pair of shoes, 2 00
    1 cap, ..... 1 00
    1 chest,..... ■ 2 50
    1 trowel, : 0 44
    $7419
    On his cross-examination, he farther testified thus : I wrote this paper three or four days after the loss, and I did not write it after this suit was commenced. I never showed this paper to any one till last night; I kept it in my trunk; I never showed it to the lawyer for the plaintiff. My brother calculated the things, but I never showed this paper to any one ; but after the judgment in the Superior Court, my brother showed me his list, the bill of particulars, and that time I never showed any list to my brother, nor to his lawyer; I showed it to my foreman, and I showed it to my boss, and I did not show it .to any one else.
    The judgment in the Superior Court, referred to by the witness, was a judgment that had been taken in this action by default.
    The plaintiff’s bill of particulars, in this action, was put in evidence, and was as follows.
    
      List of articles of clothing, die., m the int'wnk or chest belonging to plaintiff, and lost by the defendants.
    
    4 pair pants, 2 pair at $5, and 2 pair at $3, . $16 00
    1 black satin vest, at $5,...... 5 00
    5 shirts, at $1,...... 5 00
    1 frock-coat, at $18, . . . ... 18 00
    1 do. at $15,.....15 00
    2 pair socks, at 25 cents,..... 50
    1 satin apron and rosette, .... 2 50
    1 neckerchief,......." 1 50
    1 silk pocket handkerchief, .... 75
    1 hat brush,....... 50
    1 clothes brush,...... 50
    1 razor and glass,......1 00
    1 pair steelyards,......1 00
    3 pair suspenders,...... 1 00
    1 pair shoes,....... 2 00
    1 cap,........100
    1 small trowel,...... 37J
    1 chest,........ 2 50
    ->$74 12J
    The referee found, as matters of fact, that the trunk contained clothing and apparel of the value of seventy dollars, and that the trunk was worth $2. He reported in favor of the plaintiff, the sum of $72, on which report judgment was entered. The defendant appealed from the finding that the trunk contained articles of the value of $72, on the ground that the evidence was nót only insufficient to justify the report, but was entirely unworthy of credit.
    
      C. W. Sandford, for Appellant.
    
      F. A. Paddock, for Respondent.
   By the Court. Bosworth, J.

The court reluctantly interferes with the verdict of a jury, or the finding of a referee, on questions of fact. They have better opportunities to come to a correct conclusion, as they hear and see the witnesses, than a court, which judges only from a report of the testimony, which cannot always be so taken as to make the same impressions upon those who read it, as upon .those who heard it;

There are some things connected with the testimony of James G-. Kennedy, which may be susceptible of a; satisfactory explanation, but which unexplained, of uncorroborated, are calculated to excite great distrust as to its accuracy. His testimony was given on the 29th of January, 1853. He presented a statement of the articles said to be in the trunk at the time it was lost. He testified that this statement was in his own handwriting, that he made it three or four days after the loss, which occurred on the 13th of April, 1852, that he never showed the paper to any one, until the evening of the 28th of1January, 1853. He never showed it to the plaintiff, or' to his attorney. He says he made out the list, because he knew of the loss of baggage in England, and that they did not pay without suits. This, in the form in which he testifies he wrote it, is entitled: “ Lawrence Kennedy v. Hew Yobk and Harlem Rail Road Company.—’List of articles of clothing lost by the H. Y. and H. R. R. Company, belonging to the plaintiff.” Then follows an enumeration of the articles lost, with his estimate of the value of each. It enumerates every article contained in the bill of particulars furnished by the plaintiff, and no other. Every article, separately valued, is valued in both at the same price, except a trowel, which is 44 cents in one, and 37J in the other. In the statement of the witness, in one or two instances, two or more small articles are estimated in the aggregate, while in the bill of particulars tbey aPe estimated separately; but in such cases, his estimate of the aggregate value exactly corresponds with the aggregate of the several estimated values in the bill of particulars. The coincidence is extraordinary. Why the precaution of making such a list was exercised, and the list was preserved, without his showing it to the plaintiff or his attorney, or without his alluding, in his conversation with them, to the fact of his having made it, cannot be understood without explanations. If the testimony of this witness is rejected, the other testimony would not be sufficient to justify the report of the referee, tinder such circumstances, we think another trial should be allowed to the parties, and that the. trial should be by a jury. An order will be entered reversing the judgment, and setting aside the report of the referee. But the granting of a new trial must be upon the condition that the defendant pay the costs of the reference and of the subsequent proceedings. : If these terms be not accepted, the judgment must be affirmed with costs.  