#### ZIEGLER v. PEARSALL et al.

(Supreme Court, General Term, Second Department.

May 14, 1894.)

Appeal—Harmless Error—Comments on Evidence.

In an action for services alleged to have been rendered by plaintiff’s assignor to defendant’s testator, the principal witness to prove the services was the assignor’s daughter. The judge, commenting on the evidence, said that the witness was naturally interested in her mother’s claim. All the facts as to the relation of the witness to the parties on the case were fully presented to the jury. *Held,*that plaintiff was not prejudiced by such remark, as it could not have been understood by the jury otherwise than that the witness was naturally interested for her mother.

Appeal from circuit court, Kings county.

Action by John Ziegler against George W. Pearsall and another, as executors of the will of Elizabeth B. Brush, deceased, on claims arising from transaction between one Mary Harris and decedent, and assigned by said Mary Harris to plaintiff. There was a judgment in favor of defendants, and plaintiff appeals. Affirmed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

James Henderson (Simon Sultan, of counsel), for appellant.

James C. Church, for respondents.

PRATT, J.

We have examined this case with great care, and have arrived at the conclusion that it was rightly decided at the circuit upon the merits. The evidence was conflicting, but it presented a case that a jury might well regard as having no foundation in justice or equity. There is only one exception that requires any comment. The claim was for services rendered a testator in her lifetime, which had been assigned to the plaintiff. The assignor was a Mrs. Harris, who claimed to have rendered the services; and the most important witness to prove the services was Miss Harris, her daughter. The judge, in commenting on the evidence, stated that Miss Harris was naturally interested in her mother’s claim, to which remark an exception was taken. Strictly speaking, perhaps, that was error; but we cannot see that the plaintiff was prejudiced thereby. On the contrary, it clearly appears that he was not prejudiced. The substance and intent of the charge was that the jury were at liberty to pass upon the credibility of the testimony, *906which was entirely proper. Taking into consideration her cross-examination, and the evidence of the defendants, it was a case that had to be submitted to the jury, and the credibility of her testimony passed upon. There was no possibility that the words used by the judge could have misled the jury, as all the facts as to her relation to the parties and the case were fully developed to, and understood by, the jury. The charge was not that Miss Harris was interested in the result of the suit, but was a remark simply to call attention to her relation to the principal party to the claim. In truth, she was naturally interested for her mother, but not pecuniarily interested, and no intimation of the latter kind was suggested by the charge. The whole charge, taken together, was correct and impartial, and the verdict evidently just.

The claim for rent was equally without foundation; as matter of fact, testator never occupied the room at all; and, upon the assignee’s own showing, the room was given up on the 20th of April,— at least eight weeks before the termination of said alleged letting, —but only three weeks’ credit was allowed upon the bill. This-transaction seems to characterize somewhat the motives of the assignor in making up her claims. The verdict was just, and the judgment must be affirmed, with costs. All concur.