30 N.Y. 594, Merrill v. Grinnell
| Docket Number | . |
| Date | 01 June 1864 |
| Citation | 30 N.Y. 594 |
| Parties | SILAS L. MERRILL v. MOSES H. GRINNELL and ROBERT B. MINTURN. |
| Court | New York Court of Appeals Court of Appeals |
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COUNSEL
J. H. Reynolds, and John C. Strong, for the appellant.
J. Larocque, for the respondent.
DENIO, Ch. J.
The case is presented by the record in a form which requires us to review the conclusions of fact as well as the determination of matters of law. The questions are therefore substantially the same as those which would arise upon a motion to set aside a verdict or report, as being against the weight of evidence and against law.
The defendants' counsel insists, in the outset, that the whole cause of the plaintiff is false and fabricated; that he was not a passenger on the defendants' vessel upon the voyage mentioned, and did not lose any property in the manner claimed. The evidence certainly presents some circumstances of a remarkable, and, at the first view, of a suspicious character. Strachwitz himself is the only witness who gives any evidence of his possession of the property in question, of his departure from Germany, or as to his presence on the vessel during any part of the voyage described by him; and he was not able to produce any document or paper, of any kind, showing his connection with the vessel or any of its officers, or the other passengers. In addition to this, the defendants produced what they claimed to be a correct list of the passengers in the vessel, upon that voyage; which was to a certain extent verified by the master, as a witness, on the trial, and which, although it embraced more than five hundred names, did
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not contain that of Strachwitz, nor any one resembling it, or which might be mistaken for it. Moreover, the master, who was examined on behalf of the defendants, denied having seen Strachwitz during the voyage, or at its termination, or at any time until shortly before the trial. With all these disadvantages, he was able to convince the intelligent referee, before whom the issue was tried, of the integrity of his statements, and of the general truth of his narrative, His account was substantially as follows: He said he was a native of Namslau, in Prussia; that after receiving a good education he commenced life as a common soldier, in the Prussian service, though he was the son of noble parents, his father being a baron and a person of considerable property; that he was raised to the rank of lieutenant, and, at the commencement of the year 1852, was stationed at Spandau with a part of his regiment; and that he there engaged in a duel with his captain, who was wounded, which circumstance compelled him to leave the country; for which purpose, with the assistance of some friends, he proceeded to Hamburgh by the way of Lansdorff and Berlin, with the purpose of embarking for San Francisco. The money and clothing which he claims to have lost, were furnished by his relatives or on their credit. That there was no vessel going from Hamburgh to California, and he was advised to sail for New York, which he concluded to do; that he was taken by a waiter in the hotel where he lodged to the office of one Rickerts, who represented himself as authorized to sell tickets for passage from Hamburgh to New York; that he purchased a ticket for New York, for which he paid $36; that Rickerts changed his money, which was in Prussian currency, into American coin, and furnished him with a bag in which to put it; that Rickerts saw the witness's trunk, and that the conversation respecting it took place as mentioned in the findings. There were other Germans who were also going to New York, and Rickerts sent a servant with them and the witness, and they proceeded in a steamer to Hull, and
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thence by rail to Liverpool--his ticket, purchased of Rickerts, serving him instead of payment of the fare. At Liverpool, this ticket was, by direction of the servant, exchanged for one for the ship Liverpool, which was done at an office on shore; that he then embarked on the ship; and that before sailing the passengers were assembled on the deck and required to show their tickets, after which they passed into a space formed by stretching a rope across, and from thence passed into the steerage. The witness said he showed the ticket he had received at Liverpool, passed into the open space, and was not required otherwise to pay for his passage; that the ticket was given up to the officer of the ship; that during the voyage an Irish passenger had his coat stolen, and search for it was made, and the witness, among others, was obliged to open his trunk, and it was examined in the presence of the doctor, the second mate, and the ship's boy, and, he said, they seemed to be surprised at its contents. The following morning, early, the witness missed the trunk. It was present, and he had been sitting on it, till he retired. He complained to the first mate, and demanded his trunk of him, and some search was made among the sails, and in the boxes of the sailors and steerage passengers, but no vestige of the trunk or its contents was found, except a leathern segar box which had been in the trunk; and nothing had been heard of it since.
On the arrival of the vessel in New York, he said he endeavored to communicate with one of the small boats which surrounded the vessel, but they were not permitted to come near enough. A steamboat came alongside, and the doctor and passengers went ashore. The captain at the same time went ashore in a small boat. The witness was requested to leave the vessel, but he declined to go unless they would give him his trunk, but he was finally forced on board the steamboat, and taken ashore. He applied, in the first instance, to Mr. Schmidt, the Prussian consul, who advised him to go to a lawyer, which he did,
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taking along a person who could speak English and German, but the lawyer required him to advance ten dollars, which, having lost everything, he was unable to do. Finally the German society gave him a railroad ticket to Buffalo, whither he went in three days after his arrival, and he has not been in the city since. Since then he has had employment for some time as a private tutor in the family of a farmer, and after a time he was introduced to the plaintiff's attorney, and wrote or studied in his office as a clerk. It was thought advisable, he said, that he should transfer his claim to some other person, on account of his having to be a witness, and the plaintiff was suggested as a proper person. He is a relative of the wife of the plaintiff's attorney. He sold it to the plaintiff for $1,500, and received his note, which is still upaid.
The foregoing is only an outline of the testimony of Strachwitz, who was examined and cross-examined at very great length, upon many facts and circumstances of his personal history not material, except as to his credibility. His testimony appears to me to contain a natural and not improbable narrative of the events as to which he was examined. It was either true in substance or ingeniously contrived.
But he was confronted with the alleged list of passengers, and the absence of his name among those recorded there is a circumstance of great weight against him, if the paper is truly a list of the passengers, as it was claimed to be. But I think it is not. The document is headed: "Report and manifest of the cargo laden on board the Liverpool, whereof William P. Gardner is master," &c. It contains five hundred and one names, and opposite many of the names is the words one box, two boxes, &c., specifying the number, and amounting, in one instance, to as many as seventeen boxes. Where no entry of boxes is placed opposite a name, there is a mark (") such as in inventories and bills of parcels generally indicates that the number is the same as the last preceding entry. But such does not
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seem to be the precise meaning of this list. The mark usually denoting iteration means here that the persons, opposite whose name it is placed, have a certain connection with the boxes, last entered, as belonging to the same family or party. Thus, taking one case for an example, the entry is:
Edward McCormick, two boxes.
Eliza McCormick, two boxes.
Sarah McCormick, two boxes.
Margaret McCormick, two boxes.
The family name of all the parties thus set down as the owners of one or more boxes, are not always the same, but the instances of that are sufficiently frequent to show the general intention of the entries. There are two instances where the marks of iteration are omitted, but it is easy to see that this was a mere error of transcribing or printing, the identity of name showing that they formed the same family group as in the other cases. The purpose of the paper was not, therefore, I believe, to have a list of all the passengers' names, but an account of the parcels imported, and the names of the emigrants claiming those parcels. This is apparent from the heading of the document which I have already referred to, which entitles it "a report and manifest of the cargo," & c., without any reference to the names of the passengers. The master's oath, which is required to be delivered at the same time with the manifest, and which was given in evidence upon the trial of this case, omits any mention of passengers, and in no manner affirms anything on that subject. But if the provisions of law were observed as to this ship, in regard to the importation of emigrants, there was a distinct manifest of passengers altogether different from the vague paper which was given in evidence. For an act of congress, approved March 2, 1809, (3 Stat. at Large, 488,) contains an explicit direction which, on account of its important bearing upon this branch of the case, I transcribe: "§ 4. And be it further enacted that the captain or master
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of any ship or vessel arriving in the United States, or any of...
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