Culhane v. New York Central &c. R. R. Co.

There was no pretence at the trial, or on the argument before us, that any negligence could be imputed to the defendant except the omission to ring such bell, and this was the only question of fact submitted to the jury.

On this question of fact the learned judge at the circuit, in his charge, states correctly the evidence of the plaintiff's servant who was driving the horse at the time, who stated that as he approached the crossing he listened for the bell and heard none, and also that of a person riding with such servant at the time, who testified substantially to the same effect.

On the part of the defendant, the learned judge states the evidence on this point as follows: Ward, the fireman who had control of the engine, testifies that when he crossed Hudson street on his way up, Peer got on the engine and rang the bell from that point until the time of the accident. Peer testifies to the same thing. Sullivan, who says it was his duty to call the firemen and engineers, says the bell was rung; that he heard it, and saw the man pulling the bell-cord. Milligan testifies that he heard the bell, and saw it swinging; and Hogan testifies, "The bell was ringing." This last witness further testifies, on cross-examination, that he noticed the bell was ringing, because he looked up and saw it ringing. Here is the testimony of five witnesses, as the judge states it, "given with the degree of positiveness apparent from their statements."

It is affirmative testimony, where there was no room for mistake. These witnesses were on the ground at the time of the collision, and their attention was then directed to the fact of the ringing of such bell.

Each and every of these witnesses were guilty of wilful and corrupt perjury if the said bell was not in fact rung, at the time, as stated by them, to their respective knowledge.

This is not so in respect to the plaintiff's two witnesses. They simply testified that they listened, and

Culhane v. New York Central &c. R. R. Co.

did not hear the bell. That may have been so, without any impeachment of their integrity as witnesses.

Here were five witnesses against two. They were in no way impeached, and there is nothing in the case to show that they were unworthy of belief.

It is doubtless the province of the jury to weigh evidence, and to pass upon the credit of the witnesses sworn and testifying before them, but they have no right, arbitrarily or capriciously, to disbelieve the testimony of any witness not impeached or contradicted. (Lomer v. Meeker, 25 N. Y., 363. Seibert v. Erie Railway Co., 49 Barb., 586.)

They must consider the relative situation of the witnesses, their means of knowledge, and the character of their testimony, and also their liability to detection and punishment in case they give false testimony.

The testimony of McKinne and Richard, the plaintiff's witnesses, was not positive; it was merely that they listened and did not hear any bell ring. This evidence was doubtless sufficient, prima facie, to take the case to the jury on the question whether the bell was in fact rung or not; but it was not capable of contradiction, nor could these witnesses be convicted of perjury if their testimony were false. It was merely that they did not hear any bell; and who could say that they did in fact hear it, however loud it might in fact have rung.

This consideration does not apply to the five witnesses who testified for the defendant that the bell did in fact ring at the time. While it is true that the number of witnesses on each side of the question should not necessarily control in the consideration of the jury, they should nevertheless consider, as in this case, that it was far more unlikely that five witnesses would commit wilful and corrupt perjury than that two would or might do so, when they testify to the same fact with equal means of knowledge. And besides, in this case the jury should have remembered and considered that the

Dingens v. Clancey.

burden of proof was upon the plaintiff, and that he was bound to make out his case by a preponderance in the testimony upon the whole issue. (Butler v. Hud. Riv. R. R. Co., 18 N. Y., 248.) Most clearly the plaintiff on the trial failed to do so.

The weight of the testimony was decidedly with the defendant, and the verdict of the jury should have been rendered accordingly.

The order denying a new trial, and the judgment, should be reversed, and a new trial granted, with costs to abide the event.

Judgment accordingly.

[FOURTH DEPARTMENT, GENERAL TERM at Rochester, October, 1876. Mullin, E. Darwin Smith and Talcott, Justices.]

JOSEPH A. DINGENS and another vs. MARY J. CLANCEY.

Where goods are sold and delivered to a married woman on the faith and credit of her separate estate, the title thereto passes to her, and they become part and parcel of her separate estate.

The defendant, a married woman, purchased of the plaintiffs liquors, to be used in conducting the business of keeping a hotel owned by her and in her actual possession, and which business she was ostensibly carrying on, with the aid of her husband. Held that the business of keeping such hotel was, in fact and in law, the business of the defendant, within the intent and meaning of the statute relating to business carried on by married women. Held, also, that the defendant, having so conducted herself as to give the plaintiffs the right to suppose, and act upon the assumption, that she was the actual principal in carrying on the business at said hotel, she could not be allowed to disavow her liability for the goods purchased of them and used in such hotel, for her benefit, and to shift the responsibility for the payment upon her irresponsible husband.

That, under these circumstances, she was estopped from saying, as against the plaintiffs, that she was not carrying on the business of hotel keeping on her own account.

Married women, who own property and control and manage it, and carry on business thereon and therewith, in the same manner as if they were unmarried, or men, should be held to all the legal responsibilities growing out of the exercise of such rights, precisely as though they were in fact men.

Dingens". Clancey.

They cannot be allowed to hold out false appearances, in such business or matters, any more than men; nor to use their irresponsible husbands as agents or instruments of dishonesty and fraud.

A

PPEAL from a judgment entered upon the report of a referee. Action to recover the price of goods sold and delivered.

Chas. F. Park, for the appellants.

Bowen, Near & Bonham, for the respondents.

By the Court, E. DARWIN SMITH, J. The referee finds, as matter of fact, that the plaintiff sold and delivered the goods, for which this action was brought, to the defendant on the 29th of May, 1874, at the price and value of $141.50. That the defendant was then a married woman, the wife of John Clancey of Hornellsville, N. Y., and she, at the time, was possessed of a separate estate in her own right; and that the said goods were sold and delivered by the plaintiffs to the defendant on the faith and credit of her separate estate. He finds, also, that no intention to charge her separate estate was expressed in the contract of sale, and that the contract did not relate to her separate estate, and was not made for the benefit of her separate estate; and also that said liability and contract was not in or about the carrying on of a trade or business of said defendant; and he gave judgment for the defendant.

If, as the finding states, these goods were sold and delivered to the defendant on the faith and credit of her separate estate, the title to them passed to her, and they became part and parcel of her separate estate. (Williamson v. Dodge, 5 Hun, 498. Kelly v. Long, 4 Thomp. & C., 164. Knapp v. Smith, 27 N. Y., 277. Abbey v. Deyo, 44 Barb., 374.) The goods sold, however, were for use in a hotel owned by the defendant, and so far did relate to her separate estate.

But I think the referee erred in his finding upon the

Dingens v. Clancey.

facts that the liabilities and the contract, which was for liquors sold, were not in and about the carrying on of a trade or business of the defendant. These liquors, so purchased by her, were purchased for the purpose of carrying on the business of keeping a hotel owned by the defendant at Hornellsville, at the time in the actual possession of the defendant, and which she was in fact ostensibly carrying on with the aid of her husband. And I think the referee should so have found, upon the evidence. The hotel property was hers; the furniture therein was all hers; she superintended the household work. She testified as follows: "I was most always there; all of the last year I had three servants in the hotel; I gave directions to the servants what to do about the kitchen and dining rooms, and upstairs work, and such parts as I took charge of." The guests of said hotel occupied her rooms, slept in her beds, dined at her table, and paid for the services and attendance of herself and her servants. Her husband tended the bar, and took charge, outwardly, of her affairs. He was in fact simply her agent. He had no interest in the rents, use and profits of the hotel or its business. These belonged to her, prima facie, by right of her ownership of all the property. He was, doubtless, as she testified, trusted to do her business and receive her rents and moneys, and pay bills. All the receipts of the hotel were used to pay the expenses of the business, and in the support of themselves and their family.

I think the business of keeping said hotel was, in fact and in law, the business of the defendant, within the intent and meaning of the statute relating to the business carried on by a married woman - as much so as the business of carrying on a farm was the business of the wife, and not of the husband, in Gage v. Dauchy, (34 N. Y., 297;) Knapp v. Smith, (27 id., 277;) or Buckley v. Wells, (33 id., 518.)

But if this were not so generally, I think the defen