Majority
p. 319DURYEA v. MATRANGA. (Supreme Court, Appellate Term. June 13, 1900.) Argued before BEEKMAN, F. J., and GIEGERIOH and O’GORMAN, JJ.
Headnote
Identity of Name and Person—Denial—Presumption—Jury.Although a person denied that he was the defendant, yet when his name was identical, and his residence and occupation the same as the person sued, the question of his identity should have been submitted to the jury.
Appeal from municipal court, borough of Manhattan, Eleventh district.
Action by Charles H. Duryea against Joseph Matranga. From a judgment in favor of plaintiff, defendant appeals.
Reversed.
Lyman B. Bunnell, for appellant.
John Palmieri, for respondent.
It was error to take this case from the jury. The identity of name raises a presumption of identity of person where there is similarity of residence or occupation (Lawson, Pres. Ev. 307), and, notwithstanding the defendant’s denial, the question as to the defendant’s identity should have been submitted to the jury. There is sufficient evidence in the record to warrant a verdict for .the plaintiff.
Judgment reversed, and new trial ordered, with costs to the appellant to abide the event.