62
The Green Bag
where is there any constitutional guar antee of the right to several trials by jury? The injustice that attends the present system of granting new trials when a judgment is reversed upon appeal, is well stated in a recent decision of the Court of Appeals of the state of New York.* At page 53 the Court says:— Moreover, it frequently happens that cases appear and in this Court, after three or four trials, where the plaintiff on every trial has changed his testimony in order to meet the varying fortunes of the case upon appeal. It often happens that his testimony upon the second trial is directly contrary to his tes timony on the first trial, and, when it is appar ent that it was done to meet the decision on appeal the temptation to hold that the second story was false is almost irresistible. Yet, in just such cases this Court has held that the changes and contradictions in the plaintiff's testimony, the motives for the same, and the truth of the last version, is a matter for the consideration of the jury. {Williams v. Del. L. & W. R. R. Co., 155 N. Y. 158.) In this latter case the judgment ren dered on the first trial had been reversed because the plaintiff in the judgment of the Appellate Court had not established his cause of action. It considered that the merits of the case were with the defendant. On any just theory of judi cial administration the Appellate Court should have rendered final judgment, dismissing the plaintiff's complaint. But it felt bound by the existing practice to order a new trial. On this new trial the plaintiff changed his testimony so as to meet the objection to his recovery stated by the court on the first hearing. The subsequent history of the Williams case can best be stated in the language of the Court of Appeals (p. 161) :— In other words the Court, believing that the plaintiff had changed his testimony •Walters v. Syracuse Rapid Transit R. Co., 178 N. Y. 60.
falsely, with a view of avoiding the effect of the decision of this Court, concluded to dis regard his testimony on this trial, and held that what he testified to on the former trial was true. There can be no doubt but the learned Courts below, both at Trial and General Term, were actuated in their course by most praise worthy motives, fully believing that they were promoting good morals, honesty and justice, but the question is, Was their holding in accordance with law? In this case it is obvious that the Appellate Court saw that great injustice had been done, and that the plaintiff was trying to obtain a verdict by false swearing; yet it held that it had no power to correct this evil, and that the Trial Judge had erred in holding that he had the power to correct it. In short, it held not only that the right of trial by jury is sacred, but that the right to successive trials by jury is sacred, and that when once a verdict is set aside it should be taken as if it had never been. A notable case, in which the litigation lasted ten years, and there were four appeals in the Supreme Court, is Springer v. Westcott, 166 N. Y. 117. The recov ery was $900 for the contents of a trunk. Obviously the expense of the litigation much more than consumed the amount of the recovery. Similar cases are within the knowledge of us all. Another case where the injustice is per haps still more glaring is Nathan v. Uhlmann, 101 App. Div. 388. That was a suit brought originally by a de positor against the dierctors of a bank, who had received his deposit after they knew the bank was insolvent. It is perfectly clear from the report that the directors knew this. It was equally clear that there was no actual fraudu lent intent on their part. If the case had been submitted to the jury upon these two points on the first trial, and
