Lazarus v. Spencer — 61 N.Y.S. 78

Majority

p. 78

LAZARUS v. SPENCER.

(Supreme Court', Appellate Term.

November 29, 1899.)

Headnote

Appeal—Questions oe Pact—Credibility op Witnesses. Whether testimony is to be credited despite inconsistent statements is-a matter resting with the trial justice.

Appeal from municipal court, borough of Manhattan, Tenth district.

Action by Alexander G-. Lazarus against Lorillard Spencer. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before FREEDMAN, P. J., and MacLEAN and LEVENTRITT, JJ.

John W. Farquhar, for appellant.

Joel M. Marx, for respondent.

Upon a former appeal to this tribunal (then constituted by other justices) the judgment first recovered in this action was reversed because “the plaintiff was bound by the statement -of the agreement to which he had testified, and could recover only by proving his compliance with it”; and because it was “manifest from indisputable evidence that whatever was done on this occasion by the plaintiff, as well as any other services performed by him, * * * preceded the alleged agreement, and could not have been rendered in pursuance of it.” Lazarus v. Spencer, 26 Misc. Rep. 803 , 55 N. Y. Supp. 835 . Upon the trial from the result of which comes the present appeal, the plaintiff, however, made such a statement respecting the alleged agreement as to obviate the grounds so given for reversal. Whether or not the plaintiff’s second version of the transaction was to be credited despite his inconsistent statements was a matter, under the iterated rulings-of this court, resting with the trial justice. The judgment, therefore, is to he affirmed.

Judgment affirmed, with costs. All concur.