Opinion
July, 1899.
Zabriskie, Burrill Murray (J. Archibald Murray, of counsel), for appellant.
Blandy, Mooney Shipman (Andrew J. Shipman, of counsel), for respondent.
This action was brought to recover damages for an assault, alleged to have been committed upon the plaintiff by one of the defendant's employees while she was proceeding to take passage upon one of the defendant's ferry-boats at the foot of Thirty-ninth street, New York city, on September 6, 1895.
An examination of the record in this case does not disclose, nor does the appellant claim, that any error was committed in the reception or exclusion of evidence.
The brief of the appellant is largely devoted to a discussion of the weight that should be given to the testimony, but upon an appeal from the General Term of the City Court to the Appellate Term the weight of evidence is not open to review. Carney v. Reilly, 18 Misc. 11.
In the case at bar, the plaintiff testified to facts which, if believed by the jury, entitled her to a verdict.
It is true, she was the only witness in her own behalf as to the actual facts regarding the assault. The witnesses for the defendant, however, were all employees of the company. There was sufficient testimony to require the submission of the case to the jury upon the disputed questions of fact, and there appears to have been no error committed upon the trial to warrant the interference of this court.
The judgment must, therefore, be affirmed.
LEVENTRITT, J., concurs.
I concur in the result, but under Claflin v. N.Y. Standard Watch Co., 7 Misc. 668, and Schwinger v. Raymond, 105 N.Y. 648, prefer not to subscribe to the statement taken from Carney v. Reilly, 18 Misc. 11.
Judgment affirmed, with costs.