Opinion
March 2, 1906.
John J. Lindsay, for the appellant.
Joseph F. Perdue, for the respondent.
The action is for money had and received. The defendant offered no evidence. The court directed a verdict for the plaintiff, overruling, under exception, the request of the defendant for a submission to the jury. As the case depends upon the uncorroborated testimony of the plaintiff the question on this appeal is whether the general rule as stated in Saranac L.P.R.R. Co. v. Arnold ( 167 N.Y. 368), or that general rule as modified and expressed in Hull v. Littauer (162 id. 569), should obtain in this case. The general rule stated in the first case supra is (pp. 373, 374): "The general rule is that where a witness is interested in the question, although he is not impeached or contradicted, his credibility is a question for the jury, and the court is not warranted in directing a verdict upon his testimony alone. ( Gildersleeve v. Landon, 73 N.Y. 609; Kavanagh v. Wilson, 70 N.Y. 177; Elwood v. Western Union Tel. Co., 45 N.Y. 549; 29 Amer. Eng. Encyclo. of Law [1st ed.], 774.) The same rule applies to the testimony of two witnesses, both equally interested and testifying to the same facts." The general rule, as modified in the second case supra, is (p. 572): "Generally, the credibility of a witness, who is a party to the action, and, therefore, interested in its result, is for the jury; but this rule, being founded in reason, is not an absolute and inflexible one. * * * Where, however, the evidence of a party to the action is not contradicted by direct evidence, nor by any legitimate inferences from the evidence, and it is not opposed to the probabilities, nor, in its nature, surprising or suspicious, there is no reason for denying to it conclusiveness."
We think that the rule of Saranac L.P.R.R. Co. v. Arnold ( supra) applies. The plaintiff testified that he went to a race track and made five bets on a horse named Clorita with different individuals, who were making bets in an inclosure. He testified that this defendant accepted his wager at certain odds, and called it out to another person who was writing near by, together with the number of the entrance badge or ticket worn by the plaintiff. On cross-examination he testified that he never made a bet with Oliver Smith on that day, and that he never included Smith in his original complaint. Yet he was confronted with a complaint of such a character. He explains this variance by testifying that he trusted to his former attorneys. He also states that he never knew Smith until he saw him in Judge Martin's court. He testifies that he made a verified complaint against the said Smith and Rose in another action upon another bet because his counsel had told him that Rose and Smith were connected. The transaction he testifies to occurred three years before. He testifies that two others were with him at the time, and yet he does not account for the absence of one of his said companions. He could not recollect "what sort of a looking man was this defendant." He doubted whether he would know him if he saw him. We think that the court could not say that the defendant was not entitled to have the jury pass upon this testimony in that it was not open to examination on the ground of its truth, or its accuracy, or that there was no ground for suspicion that justified its scrutiny. At the same time we are far from saying that it would not support a verdict for the plaintiff.
The judgment must be reversed and a new trial ordered, costs to abide the event.
HIRSCHBERG, P.J., HOOKER, RICH and MILLER, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.