McQuade v. Adams — 25 N.Y. St. Rep. 329

Majority

p. 329

Josephine McQuade as Administratrix, etc., Resp’t, v. William Adams, App’lt.

(Supreme Court, General Term, Second Department,

Filed June 28, 1889).

Headnote

Appeal—Verdict—When not disturbed—Weight of evidence.

In an action by an administratrix to recover moneys loaned by plaintiffs’ intestate to defendant, there was evidence tending to show that defendant stated to plaintiff that he was indebted to the deceased. Defendant testified to a full payment of the entire loan, but the evidence as to payment was uncertain, as to time and amount. Held, that a verdict for plaintiff should not be disturbed on appeal.

Appeal from a judgment entered on the verdict of a jury at the Kings county circuit, and from an order denying a motion for a new trial.

W. J. Powers, for app’lt; Henry D. Birdsall, for resp’t.

The complaint stated a loan of moneys by the plaintiff’s, intestate to the defendant, and claimed a balance of $166, 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 proved 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 to a full payment of the entire loan. The refusal of the trial judge to permit the defendant to answer a question calling for a statement of 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.

The judgment should, therefore, be affirmed, with costs.

Pratt. J., concurs; Dykman, J., not sitting.