#### Julius M. Cohen, Plaintiff-Appellant, *v.*Adolph Riesenberg et al., Doing Business as H. C. F. Koch & Company, Defendants-Respondents.

(Supreme Court, Appellate Term,

December, 1910.)

Instructions —■ Power of court and necessity — As to credibility of witnesses — Expert witnesses.

A jury should be instructed that the weight of the testimony of an expert in answer to a hypothetical question depends entirely upon whether or not the facts recited in the question are established by the evidence, and that in all eases it depends upon the knowledge, accuracy and honesty of the witness and is to be weighed and considered the same as any other evidence; and a verdict influenced in some degree by the understanding that the jury were at liberty to absolutely consider or reject the testimony of the expert will be set aside.

*600Appeal by tbe plaintiff from a judgment rendered in favor of the defendants in the Municipal Court of the city of Hew York, borough of Manhattan, fifth district.

Davis & Dworsky (Harold P. Dworsky, of counsel), for appellant.

Abraham S. Weltfisch, for respondents.

Platzek, J.

The plaintiff delivered to the defendants three pairs of Marie Antoinette and two pairs of Bon Femme curtains, to be cleaned. These curtains were redelivered by the defendants to the plaintiff, who then sent the Marie Antoinette curtains to Altman & Go. to be headed, keeping the Bon Femme curtains in his possession. The defendants employed one Levey, a dyer and cleaner, to clean these curtains. The plaintiff claims that the unskillful and unworkmanlike manner in which the curtains were treated in the process of cleaning resulted in damaging and partially destroying them. There is a conflict in the evidence as to whether the curtains to be cleaned were to be treated by a dry or wet process, and also whether they were damaged at all by the defendants or Levey, their agent, or in some other way. William Forger was called as an expert witness by the plaintiff to show the difference in'the method and result of cleaning the curtains by dry or wet process and that the cleaning was improper and unskillful. Innumerable incompetent hypothetical questions were framed and propounded by plaintiff’s attorney to this witness, to which numerous general and technical objections were made and passed upon by the court. It is manifest that it was impossible for the jury to intelligently consider and determine the weight and credence to be given to the expert testimony *under the circumstances disclosed in the record.*In order to properly weigh the expert proof, the attention of the jury should have been drawn to the fact that, when testimony is given in answer to a hypothetical question, its weight depends entirely upon whether or not the facts recited therein are established by the evidence, and that in all cases it *601depends upon the knowledge, accuracy and honesty of the witnesses and, whether with respect to what the expert witness observed or with respect to his opinion on an assumed state of facts, is not to be rejected or accepted at will, but is to be weighed and considered by the jury the same as any other evidence; the jury, however, being at liberty, after weighing and considering such testimony, to disbelieve it when it is improbable, or when it is discredited or disproved by other testimony in the case, or when the jury believe that such witness has -testified falsely or was mistaken with respect to any fact or opinion. Lubbee v. Hilgert, 135 App. Div. 227. It is a fair assumption that the jury was influenced in rendering their verdict in some degree by the understanding that they were at liberty absolutely to consider or reject the expert evidence, especially that embraced in the hypothetical questions, as they saw fit. Besides, the verdict is against the weight of evidence.

It follows that the judgment must be reversed and a new trial granted, with costs to appellant to abide the event.

Guy and Gavegan, JJ., concur.

Judgment reversed.