#### John Finn, Appellant, *v.*George Peterson et al., Respondents.

(Supreme Court, Appellate Term,

October, 1898.)

Witness — Parties charged with negligence are interested and their credibility must be submitted to the jury — Dismissal oí complaint.

In an action to recover damages for falling into a coal hole in front of certain premises, the complaint charged that the driver of the defendant Peterson, a coal dealer, negligently omitted adequately to fasten the cover of the coal hole in position after he had removed it, and it also charged as to the defendants Kupper, who were tenants of the premises and to whom the coal was delivered, that they “ negligently omitted to carefully close said coal hole and fasten the cover thereof after notice and knowledge of the fact that the same had been opened as requested by them, and had been negligently left unsafely covered.” The driver and Mary Kupper gave material testimony for the defendants. At the close of all the evidence the court dismissed the complaint.

Held, that, even assuming that the evidence' of these defendants was uncontradicted, the court could not properly dismiss the complaint, as, under the allegations as to the negligence of the defendants, they were interested parties whose credibility was a question for the jury.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Mew York, borough of Manhattan, tenth district, dismissing the complaint upon a trial had before the court and a jury. ■

Action to recover damages for a personal injury claimed to have been sustained in consequence of the defendants’ negligence.

The pleadings were in writing. The opinion states the material facts.

Gilbert D. Lamb, for appellant.

Porter & Kilvert, for respondent Peterson.

Albert I. Sire, for respondents Kupper.

*738Giegerich, J.

The plaintiff fell into a coal hole in front of the premises No. 211 West Fifty-eighth street, borough of Manhattan and city of New York. The accident was due to the turning or slipping aside of the cover thereon, which the driver of the defendant Peterson, removed by direction of the defendant Mary ' ¡Shipper, when delivering coal to the latter on the day previous.'

The defendants ¡Shipper were tenants occupying apartments in said premises and the defendant Peterson was a coal dealer.

The plaintiff’s claim bf negligence, as it appears from the com- • plaint, is that the defendant Peterson’s servant placed said covering on said coal hole, but negligently omitted to adequately fasten the same in position, and that the defendants ¡Shipper “ negligently omitted to carefully close said coal hole and fasten the cover thereof after notice and knowledge of the fact that the same ;had been opened as requested by them, and had been negligently left unsafely covered.”

These allegations are controverted by the answers of the defendants.

On the trial the driver of the defendant Peterson testified that . after leaving the coal in the chute he cleaned the rim of the cover with his finger; replaced the cover, and tapped it with a shovel. •The defendant Mary ¡Shipper testified that. *“*after the coal was in •T saw that the man shut the cover and tried it with the shovel, and then he moved away.”

When both sides rested the defendants moved to dismiss the com- ; plaint. The motion was granted despite the request of the plaintiff for submission to the jury of cértain questions, and the latter :noted an exception. This ruling seems to have been made upon the theory that the testimony of these witnesses was not contra- . dieted, and, therefore,' the court was bound to accept the same. But as the said defendant Mary ¡Kupper was an interested party (Joy v. Diefendorf, 130 N. Y. 6; Matter of Dimock, 11 Misc. Rep. 610; Brown v. James, 2 App. Div. 105; Miner v. Hilton, 15 id. 55), and as the driver of the said defendant Peterson, since he was one of the persons charged with the negligence which resulted in plaintiff’s injuries) was likewise an interested witness (Canajoharie National Bank v. Diefendorf, 123 N. Y. 191; McManus v. Woolverton, 19 N. Y. Supp. 545; Flour City National Bank v. Grover, 88 Hun, 4; Kingsland Land Co. v. Newman, 1 App. Div. 1; Dougherty v. Metropolitan Life Ins. Co., 3 id. 313), the weight to be given their testimony was a question for the jury, and hence *739the trial justice erred in refusing to submit it to them. *Vide*authorities, *supra.*

For this reason the judgment should be reversed and a new trial •ordered, with costs to the appellant to abide the event.'

Beekman, P. J., and Gildersleeve, J., concur.

Judgment reversed and new' trial ordered, .with costs to appellant to abide event.