
    Augustus S. Kidder, Appellant, v. Morris Jones, Respondent.
    (New York Common Pleas — General Term,
    June, 1895.)
    • In an action for damages sustained by a collision between vehicles in which, a counterclaim for damages arising out of the same occurrence was interposed, the counterclaim was disallowed and judgment rendered for the defendant on plaintiff’s cause of action. Held, that there was no inconsistency in the judgment.
    Appeal from a judgment of the Eighth Judicial District Court, rendered by the justice, without a jury, in favor of the defendant.
    
      Frederick L. Gilbert, for appellant.
    
      Herman Joseph, for respondent.
   Bischoff, J.

By reason of a collision between their vehicles, both parties to this action claimed 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 former’s carelessness alone rendered the accident unavoidable, and upon the simple conflict presented by the contradiction of this testimony the finding of the justice concludes.

But the plaintiff contends the judgment is inconsistent in that no damages were awarded the defendant upon his counterclaim. True, the collision was due solely to plaintiff’s negligence, if defendant’s witnesses are to be believed, and the judgment 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 vnconsistency, 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; Wilson v. Wyandance, etc., Co., 4 id. 605; Davey v. Lohrmann, 1 Misc. Rep. 317; 48 N. Y. St. Repr. 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.

Bookstaveb and Pbtob, JJ., concur.

Judgment affirmed, with costs.  