Opinion
February, 1899.
Gould Wilkie, for appellants.
Hyland Zabriskie, for respondent.
Not only is there evidence to sustain the finding of fact by the court, but so far as concerns the number of witnesses and the probability of their testimony, coupled with the inference to be drawn from the bill of lading introduced, the preponderance of evidence is in favor of the decision of the court. Some stress is laid upon the admission of evidence, against objection by the defendants, that when a boat is chartered by the day, as distinguished from hiring for freight, it is not customary to sign a bill of lading for the cargo. The only ground of objection to this evidence was its immateriality. The bill of lading, however, was seemingly neither a special agreement nor the agreement upon which the plaintiff based his cause of action, hence the testimony did not prove or vary its purport, but applied to another fact, namely, that if the fact had been, as contended for by the defendants, they would not have been able to produce the paper in question.
FREEDMAN, P.J., concurs; LEVENTRITT, J., concurs in result.
Judgment affirmed, with costs.