Ernst A. T. Bjerrum, Appellant, v. Springfield Breweries Company, Respondent

Ernst A. T. Bjerrum, Appellant, v. Springfield Breweries Company, Respondent. The credibility of expert witnesses is to be determined by the jury. A judge presiding at a jury trial, after two duly qualified expert witnesses had: testified upon the subject of the plaintiff’s damages, said: “There is no use calling more witnesses like these. I do not believe them; ” and directed a verdict for nominal damages for the plaintiff. Held, that such action on the part of the court required a reversal of the judgment, as the credibility of the expert witnesses was for the jury and not for the court to pass upon. Appeal by the plaintiff, Ernst A. T. Bjerrum, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of March, 1902, upon the verdict of a jury in favor of the plaintiff, rendered for nominal damages by direction of the court, and also from an order entered in said clerk’s office on the 4th day of April, 1902, denying the plaintiff’s motion for a new trial made upon the minutes. J. Arthur Hilton [M. Casewell Heine with him on the brief], for the appellant. James W. Gerard [John M. Bowers with him on the brief], for the respondent. [MAJORITY — Hooker, J.:] Hooker, J.: The defendant bought certain premises and agreed with the plaintiff to erect a hotel thereupon, according to certain plans, and to rent the same to him for a period of five years at the sum of $2,000 per year. Plaintiff, on his part, in consideration of defendant’s promises,, agreed to occupy the said premises, and pay the amount of rent set forth in the contract. The defendant, however, refused to carryout the terms of its contract, and did not erect the buildings, whereupon plaintiff sued for damages, claiming to be entitled to the difference between the rent reserved under the agreement and the rental value of the property had the hotel been erected. Plaintiff called several expert witnesses in an effort to show that the value of the lease was greater than the rent reserved; two of these witnesses, Texter and Reitz, after examination, were held by the court to be qualified as experts, and this decision of the trial judge was correct. Texter testified that the rental value would be $6,500 a year; he was clearly qualified as an expert, and the hypothetical question put to him was, after being finally altered to meet defendant’s objections, a fair one. This witness was not cross-examined by defendant’s counsel. To the witness Reitz, who was also competent as an expert, the hypothetical question was put, and no objection made thereto. He testified that the rental value was between $5,500 and $6,000 a year. At the close of the examination of the latter witness the defendant moved to strike out the evidence, and the court said: “ There is no use calling more witnesses like these. I do not believe them,” At the close of plaintiff’s ease the court directed a verdict for six cents in plaintiff’s favor, to which direction plaintiff excepted. The judgment must be reversed for the error of the court in directing a verdict for nominal damages. If the experts, whose evidence was properly received, had been believed by the jury the plaintiff would have been entitled to substantial damages; their credibility was for the jury, and not for the court, to pass upon. (McDonald v. Metropolitan St. Ry. Co., 167 N. Y. 66; Williams v. D., L. & W. R. R. Co., 155 id. 158.) The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event. Goodbich, P. J., Bartlett, Woodward and Jenks, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event.