Howe v. Schweinberg — 53 N.Y. St. Rep. 72

Majority

p. 72

William F. Howe et al., Resp’ts, v. Isabella Schweinberg, Adm’rx, App’lt.^[1]

(New York Common Pleas, General Term,

Filed June 5, 1893.)

Headnote

Trial—Directing verdict.

Upon the confirmation by a disinterested and unimpeached witness of the uncontradicted evidence of another witness whose testimony, by itself, might be the subject of suspicion, the court is warranted in directing a verdict.

2. Evidence—Code Crv. Pro., § 829.

A party on cross-examination, by eliciting a partial disclosure of a transaction not open to proof by his adversary, under § 829 of the Code, admits that adversary, on the re-direct examination, to a complete disclosure of the transaction.

Appeal from judgment of the general term of the city court, affirming judgment on verdict by direction of the court.

Action on a special agreement for compensation of professional services.

Abram Kling, for app’lt; David Leventritt, for resp'ts.

The plaintiffs sue upon a special contract for a fee of a thousand dollars, contingent on the event of the litigation for which they were retained. On the trial, the single issue in controversy was as to the fact of the agreement. At the close of the plaintiffs’ ease the defendant declined to introduce any evidence, whereupon the court directed a verdict for the plaintiffs; and the only question for adjudication is, whether the issue touching the contract between the parties should have been submitted to the jury.

Upon the assumption that, for proof of the contract, the plaint

p. 73

iifs relied exclusively on the testimony of Moss, their clerk, and that his story was improbable and discredited by his own contrary declarations, the defendant insists that the evidence presented a case for determination by the jury.

Certainly, the courts have gone very far in refusing to decide a case on the uncorroborated evidence of a witness whose relations to a party imply the influence of some sinister interest or motive. Whether the testimony of the witness Moss before us, in view of his connection with the plaintiffs, and his supposed improbable and discrepant statements, be of the character impugned by the decisions, we need not determine; for it was abundantly confirmed by another witness whose evidence is accredited by its repugnancy to his own obvious interest.

Simon Feist was called by the plaintiffs to prove the disputed contract; but, as he had guaranteed its performance by the intestate, the defendant procured the rejection of his testimony, because incompetent under the provisions of § 829 of the Code. Nevertheless, the defendant proceeded, upon cross-examination, to show by the witness that he had made a payment to plaintiffs, and the time of the payment. Thereupon, plaintiffs’ counsel elicited from the witness the fact that he made the payment on his guaranty of the very contract in controversy.

Here, beyond question, was the most persuasive proof of the contract; because by a witness who was himself bound to perform it on the default of defendant’s intestate, and who, indeed, had already made a partial payment in discharge of his obligation under it. In Kavanagh v. Wilson, 70 N. Y., 177 , 179, the-court say: “ When a disinterested witness, who is no way discredited, testifies to a fact within his own knowledge, which is not improbable, or in conflict with other evidence, the witness is. to be believed, and the fact is to be taken as legally established, so that it cannot be disregarded by court or jury.” Lomer v. Meeker, 25 N. Y., 361 ; Elwood v. The 'Company, 45 id., 549. True, the witness was interested; but as his interest was against his testimony, we have a stronger confirmation of his veracity than if he stood wholly indifferent.

The defendant urges, however, that the contract is incredible, and so it might be if an absolute engagement to pay, but being contingent on the success of the services, it is not an improbable bargain.

Defendant’s counsel contends further, that the evidence, though drawn from the witness by cross-examination, was incompetent under § 829 of the Code; but how so ? By interrogating upon new matter the defendant made the witness her own; and by a partial disclosure entitled her adversary to a revelation of the entire transaction. People v. Oyer & T. of New York, 83 N. Y., 438 ; Nay v. Curley, 113 N. Y., 575 ; 23 St. Rep., 496 ; Merritt v. Camp-bell, 79 N. Y., 625 .

The conclusion is that the court was well warranted in withholding the case from the jury.

Judgment affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.