Howe v. Schweinburg — 49 N.Y. St. Rep. 882

p. 882

William F. Howe et al., Resp’ts, v. Isabella Schweinburg, Adm’rx, App’lt

(City Court of New York,, General Term,

Filed December 22, 1892.)

Headnote

Trial—Direction oe verdict—Witness.

In an action to recover a balance claimed to be due under an alleged contract by defendant’s intestate to pay for legal services, the testimony of plaintiffs’ clerk as to the contract was full, clear, positive and uncontra-

p. 883

dieted. Held, that it was not necessary that his testimony should be submitted to the jury, and that the court properly directed a verdict.

(FiTzsnKms, J., dissents.)

Appeal from judgment in favor of plaintiffs, entered on verdict directed by the court.

Abram Kling, for app’lt; David Leventritt, for resp’t.

The plaintiffs declared upon and proved a special contract, by which the intestate, prior to his death, agreed to pay the plaintiffs a specified sum of money, as a fee, if they succeeded in accomplishing certain results, which they ultimately brought about after the expenditure of time and labor.

The plaintiffs received part of the fee, and the trial judge directed a verdict in favor of the plaintiffs for the balance.

The evidence of Moss, the plaintiff’s clerk, as to the contract, relied upon, is full, positive, clear and uncontradicted, and the witness stood unimpeached.

Within the rule, therefore, that where an unimpeached witness •gives testimony uncontradicted, either by other witnesses or by •circumstances, and, moreover, natural, plausible and probable, such testimony is conclusive, must be accepted by the court, and need not be submitted to the jury. Kelly v. Borroughs, 102 N. Y., 95 ; 1 St. Rep., 161 ; Lomer v. Meeker, 25 N. Y, 361 ; Plyer v. German Am. Insurance Co., 121 id., 692; 31 St. Rep, 836 .

There is no merit in the exceptions,, and no error requiring a .new trial.

It follows that the judgment must be affirmed, with costs. »

Hewburger, J., concurs.

(dissenting).—The witness Moss, who testified as to the contract between plaintiffs and defendant’s intestate, upon which this action is based, sustains toward plaintiffs an extremely close, intimate, trusted and confidential relation, such as partners usually occupy towards one another; so much do they confide in him, that they permitted him to argue the matter, for which the fee in suit was promised, before the governor of this state, and upon the success of his effort depended the plaintiffs' right to said fee, amounting to $1,000, no small matter. He is an intelligent, capable, faithful, valuable and valued assistant, earning $4,000 a year, and as such, takes such an interest in the plaintiffs’ law business as to be practically interested therein and be identified therewith so deeply and intimately as to bring him within two classes of witnesses where testimony must be submitted to a jury, even though uncontradicted, because of their bias and interest. Cleveland v. Nellis Co., 45 St. Rep., 288 .

I think that the trial justice should have submitted plaintiffs’ testimony to the jury for their verdict, and that it was error for him to direct a verdict thereon in their favor.

Judgment should be reversed and a new trial ordered.

Judgment affirmed, with costs.