#### Fred Bauer, an Infant, by Jacob Bauer, His Guardian ad Litem, Appellant, *v.*Montague Mailing Machinery Company, Respondent.

Second Department,

July 31, 1914.

Master and servant — negligence — injury to boy working at stamp press — evidence —when verdict of jury upheld regardless of weight of evidence.

Where in an action for personal injuries to a boy whose duty it was to gather plates or discs as they dropped from a stamp press, the issue was whether the plaintiff was meddling with the machine against orders or whether the operator had sent him to operate it, the plaintiff was the only witness in his own behalf and was opposed by three witnesses for the defendant who were unimpeached and apparently credible, and by the operator who denied that he had sent plaintiff to run the press and had refused such permission, it cannot be said that the trial judge erred in setting aside a verdict for the plaintiff.

Although it may be true that a contention of fact though improbable if believed by a jury; should be upheld regardless of the weight of adverse testimony, where the evidence is so balanced that the jury may fairly draw different conclusions, an uncorroborated plaintiff interested in his *590personal recovery is not on a parity with the witnesses called against him, and his testimony given with the obvious motive to make out liability is not controlling if the court feels that a verdict based thereon would defeat the ends of justice.

Appeal by the plaintiff, Fred Bauer, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 19th day of ¡November, 1913, granting defendant’s motion to set aside the verdict of a jury in plaintiff’s favor for $2,500 and for a new trial.

*Adolph Feldblum [Martin T. Manton*with him on the brief], for the appellant.

*John G. Pheil [William Matthews*with him on the brief], for the respondent.

Per Curiam:

Plaintiff, a sixteen-year-old boy, on the second day that he was working in defendant’s shop, had his hand hurt in a stamp press. His duty had been, at the rear of the machine, to take up the stamped plates or discs as they came down in a chute from the press, and wipe off the lubricant and then pack them in boxes. In the afternoon of October 3, 1910, while the press operator temporarily left his place, plaintiff stepped around to the front of the press, and was hurt while attempting to get the discs out that had been jammed under the die. The issue was whether he was meddling with this machine against orders, or if the operator had sent him to work the press. Plaintiff, who had no other witness, denied that he had ever been warned against running the machine, and maintained that as the operator was leaving he had called him around to run the machine. Plaintiff admitted that he had not been instructed at all in its operation. After plaintiff had been hurt he was heard by three witnesses to say it was his own fault, and to one witness that he had no business monkeying with the machine. The operator denied that he sent plaintiff to run the press, indeed he stated he had refused such permission. The jury returned a verdict for plaintiff which after-wards the court set aside, stating that he was convinced plaintiff had been told not to touch the machine, also that- the *591court, recalling the manner in which the witnesses testified, had not changed his original feeling that the verdict was against the weight of the evidence.

Appellant here argues that the credibility of the plaintiff was for the jury, so that, even if the court disbelieved his testimony, the verdict should stand.

But juries may be led into error, not alone from partiality or bias, but from the suggestive arts of advocates. The trial judge must, therefore, scrutinize what is said, and how it is told, in view of the interest of the witnesses, so that the verdict shall do substantial justice. *(Ferguson*v. *Gill,*74 Hun, 566.) This power is necessary and its exercise so salutary that no rules have been declared rigidly defining the conditions of granting a new trial. The action of the trial court, with the witnesses before him, must be deferred to by a reviewing court, which can only read their testimony in print. To warrant reversal of such an order, the proofs must be so strong in favor of the verdict that we can say, with a reasonable degree of certainty, that the trial court’s conclusion was wrong. *(Aldridge*v. *Aldridge,*120 N. Y. 614.)

Plaintiff was opposed by three witnesses for defendant, who were unimpeached and apparently credible, and whose cross-examination left them unshaken. Hence we cannot say that the learned judge erred in rejecting such a verdict. It seems lately to be urged that a contention of fact, though improbable, if believed by a jury, should be upheld, regardless of the weight of adverse testimony. This may be the rule where the evidence is so balanced that the jury could fairly draw differing conclusions. An uncorroborated plaintiff, interested in his personal recovery, is not on a parity with the witnesses called against him, and his testimony, given with the obvious motive to make out liability, is not controlling, if the court, who listens and observes his story, feels that a verdict based thereon would defeat the ends of justice.

The order should be affirmed, with costs.

Present — Jenics, P. J., Burr, Bioh, Stapleton and Putnam, JJ. •

Order unanimously affirmed, with costs.