Horenburger v. Levy — 64 N.Y.S. 448

Majority

p. 448

HORENBURGER v. LEVY.

(Supreme Court, Appellate Term.

May 1, 1900.)

Headnote

Evidence—Weight and Sufficiency—Effect of Receipt.

Where the evidence Is conflicting, and plaintiff’s memory is shown to be unreliable, a receipt in full,’ which is the only writing bearing upon the arrangements between the parties, should have a controlling effect upon the judgment rendered, in so far as the contents of the receipt are concerned.

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

Action by one Horenburger against one Levy. From a judgment for plaintiff, defendant appeals.

Modified and affirmed.

Argued before TRTJAX, P. J., and SCOTT and DUGRO, JJ.

A. L. Phillips, for appellant.

A. J. Westermayer, for respondent.

In view of the possibilities, the conflict of evidence, and the unreliability of the plaintiff’s memory, as evidenced by the variances between the allegations of his verified complaint and his testimony, it seems that the only writing which bore upon the arrangements between the parties should have been controlling, so far as its contents are concerned. I refer to the receipt in full.

The judgment should be modified so as to be for f227, and as modified affirmed, without costs.