McQuade v. Adams — 6 N.Y.S. 127

Majority

p. 127

McQuade v. Adams.

(Supreme Court, General Term, Second Department.

July 2, 1889.)

Headnote

Appeal—Weight of Evidence.

In a suit by an administratrix to recover money loaned by the intestate, the testimony showed that defendant had admitted to the administratrix an indebtedness to deceased. Defendant testified to full payment, but his evidence was uncertain as to time and amount. Held, that a verdict for plaintiff would be sustained.

Appeal from circuit court, Kings county.

p. 128

Josephine McQuade, administratrix of Bernard C. McQuade, sued William Adams for money loaned to him by intestate. Brora a judgment for plaintiff, defendant appealed.

Argued before Barnard, P. J., and Pratt, J.

W. J. Powers, for appellant. Henry D. Birdsall, for respondent.

The complaint stated'a loan of moneys by the plaintiff’s intestate to the defendant, and claimed a balance of $766, with interest. The answer admitted that the deceased loaned to the defendant various sums of money, without stating the amount, and averred payment. Upon the trial it was proven that just after the death of the intestate the defendant stated to the administratrix that he owed the deceased for sums of money borrowed. Upon the trial the defendant testified that he borrowed $2,000 in all, and he testified too full payment of the entire loan. The refusal of the trial judge to permit the defendant to answer a question calling foraslatementof a payment by defendant to deceased was subsequently cured by the admission of the answer. The fact of payment thus became the only question for the jury to pass upon. The evidence of payment is uncertain in time and amount, and rests almost wholly upon the testimony of the defendant. The narrative is so rambling that an appellate court could not interfere with the verdict of a jury upon it. It is irreconcilable with the admission made to the widow just after her husband’s death.

Pratt, J., concurs.