Thompson v. Fargo

Daniels, J. Upon the trial of this action the plaintiff produced a verified copy of the muster roll of Company H, Eleventh Regiment of Illinois Cavalry, from which it appeared that neither the name of John White nor William White appeared among the officers or men of that company. From that circumstance it was maintained, on behalf of the plaintiff, that neither of those persons belonged to the company, and that they were fictitious persons. But the discharge of each person was produced, purporting to be given by M. Campbell, as captain of the Eighth Iowa Infantry, com 94 manding the regiment; and, according to plaintiff’s own evidence, he presented these discharges to the paymaster at Springfield when he received' the amounts claimed by the Whites. And upon them, with the other papers used, the plaintiff received for them the money in dispute in this action. From these circumstances it is to be inferred that the discharges produced were genuine and authentic. And if they were, then they are evidence that the Whites were in the United States military service, and entitled to the money in controversy, although for some reason their names do not appear on the muster roll of the company. There was sufficient before the referee to justify him in concluding that the Whites were real living individuals, and entitled, as against the plaintiff, to the money claimed in this action. And as that was the case, no such change was made in the evidence as distinguished the facts proved, or the rights of the plaintiff, from what they appeared to be when this action was previously before the courts for review. Accordingly the decision then made is conclusive against the plaintiff; and the judgment appealed from should be affirmed (Thompson agt. Fargo, 49 N. Y., 188.) , Davis, P. J., and Lawrence, J., concurred.