#### Margaret McCarty, Respondent, *v.*The Interurban Street Railway Company, Appellant.

(Supreme Court, Appellate Term,

May, 1905.)

Negligence — Action for personal injuries — Testimony changed on second trial — Apparent desire to make a case.

Where a judgment for plaintiff, in an action for personal injuries sustained while she was alighting from a street car, is reversed upon the ground that there was not a particle of evidence that she gave any signal to the conductor, or that he knew, or had reason to know, that she intended to alight, and on the second trial plaintiff and her son flatly contradict their testimony at the previous trial as to where the car stopped, taken in connection with radical changes in their testimony on material points which lead to the conclusion that the testimony on the second trial was apparently given with the sole desire to fit the facts to suit the case, regardless of truth or consistency, the judgment in her favor will be reversed.

Appeal from a judgment of the City Court of the city ■ of ¡New York, entered upon the verdict of ,a jury, and from an order denying defendant’s motion for a new trial.

¡Henry A. Robinson (Bayard H. Ames and F. Angelo Gaynor, of counsel), for appellant.

Hieronymus A. Herold, for respondent.

Greenbaum, J.

This appeal is from a judgment entered upon a second trial of the action. A judgment in favor of plaintiff was reversed by this court (88 N. Y. Supp. 388), for the reason as stated in the opinion of Mr. Justice Scott, writing for the court, that there was “ not a particle of evidence that the plaintiff gave any signal to the conductor, or that he knew or had reason to know that plaintiff intended to alight. * * * The plaintiff thus wholly failed to show notice to the conductor, either in the particular manner alleged in the complaint or in any other manner.”

On the new trial, the plaintiff and her son, who were the *346only witnesses produced by her as to the accident, testified that the conductor was apprised at or near Twenty-seventh' street of her desire to alight at Twenty-third street; that she was about to get off at Twenty-fourth street when the conductor said “ This is not Twenty-third street, this is Twenty-fourth street.” Both witnesses also testified that the car came to a full stop at the northwest corner of Second avenue and Twenty-third street, whereas they had both testified with the utmost positiveness at the previous trial that the car stopped at the southwest comer. The significance of a change in the latter testimony may be found in the fact that both witnesses had placed the scene of the accident near the pillars. of the elevated structure which turns east going through Twenty-third street, whereas it was demonstrable upon the second trial beyond peradventure of successful contradiction that the elevated pillars did not extend to the southwesterly comer of Second avenue and Twenty-third street.

The plaintiff and her son freely admitted that her lawyer had told her after the appeal had be.en taken that she made a mistake as to. the side of the street, *“*that there was no post on the other side, that the post was on the up-town side.”

It is unnecessary to refer to other contradictions which, standing alone, might be reconcilable with the truth, but taken in connection with the radical changes in the testimony on most material points they lead one to conclude that the testimony of the plaintiff and her son, both interested witnesses, was apparently given with the sole desire to fit the facts to suit the case, regardless of truth or consistency.

The remarkable resurrection of the dual recollections of plaintiff and her son on the second trial, as to facts and incidents tending to show that the conductor had full knowledge of plaintiff’s intention to alight, coming as it does after the comment of the appellate court that failure to show such knowledge on the part of the conductor was fatal to a recovery, makes it necessary to scan this testimony with close scrutiny. Ro satisfactory explanation of the omission to bring out the important proof necessary for the maintenance of plaintiff’s case on the first trial and of her reawakened *347recollection and of that of her son after the appeal was made nor were any reasons, consistent with an honest desire to fairly state the facts with reference to the other changes in testimony, given.

On the other hand, the motive for adapting the proofs on the second trial to a successful issue of the case is all pervading.

Bearing false witness is unfortunately too common in courts of justice. It is to he deplored that the criminal law is so rarely successfully invoked in the punishment of this most serious of crimes.

When, therefore, it is made apparent that the sacred oaths of witnesses are recklessly regarded or deliberately ignored, it behooves the court to be vigilant in its efforts to detect the crime, which pollutes the administration of justice and to thwart the unholy scheme, which seeks to reap a benefit for one to the hurt of another.

One cannot fail to be impressed with the conviction that the vital changes in the testimony were suggested by the opinion of the appellate court on the former appeal, and the interests of justice will, I think, best be subserved by reversing this judgment and ordering a new trial.

Scott and Leveittritt, TJ., concur.

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