Siefke v. Siefke — 55 N.Y. St. Rep. 388

Majority

p. 388

Henry Siefke, App’lt, v. Herman Siefke, Jr., Resp’t.

(New York Common Pleas, General Term,

Filed November 6, 1893.)

Headnote

Monet loaned—Weight of evidence.

In an action for money loaned, plaintiff testified that he loaned defendant the money to buy a suit of clothes, and was corroborated by his wife and a witness who testified that defendant had promised to call and settle. Defendant denied the loan, and gave evidence tending to show that about

p. 389

the time of the alleged loan he purchased a suit ef clothes which his uncle paid for, and in this was corroborated by the person who sold the clothes and two other witnesses. Held, that a judgment in favor of defendant should not be reversed as against the weight of evidence.

Appeal from a judgment for defendant rendered by the district court in the city of FTew York for the eighth judicial district. Action to recover for money alleged to have been loaned to defendant.

Bliss & Schley, for app’lt; Wm. Allen, for resp’t.

Plaintiff testified that in the early part of October, 1889, he loaned defendant forty-five dollars wherewith to-purchase a suit of clothes for personal use. In this he was directly corroborated by his wife and indirectly by Burchill, who deposed that upon demand of repayment defendant promised to-call upon plaintiff and settle. Defendant, on the other hand, flatly contradicted the witness mentioned, and was allowed without objection to introduce evidence tending to show that about the time of the alleged loan he purchased a suit of clothes of one Batzing, for which F. Siefke, an uncle of defendant, paid. Defendant, Batzing, Mrs. W. D. Siefke and Minnie Salb each testified to the last-mentioned effect. The justice below rendered judgment for defendant, and we are asked to reverse it as against the weight of the evidence.

Testimony tending to prove alleged oral admissions of a fact, depending for its accuracy upon the intelligence of the witness, the reliability of his recollection, the difficulty of imparting the inflections and deflections of voice and the gestures accompanying the alleged admission, all of which is material to convey the true sense in which the person charged with the admission wished to be understood, is evidence of an inferior degree, and not to be received without extreme caution in the consideration of the weight of the evidence for and against an alleged fact. 1 Greenl. on Ev., § 200; Steffens v. Steffens, 16 Daly, 363 , 369; 33 St. Rep., 643 . Plaintiff’s testimony was subject to discredit, without direct impeachment of his credibility, as that of a party interested in the event of the action, and while his wife had no such direct interest, she was nevertheless remotely interested in the issue of the trial favorably to her husband. Besides, the manner and demeanor of a witness while under examination, indicating bias, recklessness, confused recollection or defective memory, may properly aid in the determination of the degree of credibility which should be attributed to his statements.

The trial justice having the advantage, therefore, of observing the witness, an appellate court is not warranted in disturbing his determination of the facts upon conflicting evidence only on the ground that a greater number of witnesses testified to the contrary. Baird v. Mayor, etc., 96 N. Y., 567 , 577; Rice on Evidence, Vol. 2, p. 789.

Inconsistency of the several parts of his testimony and improbability of the truth of his narration are among the essential tests which should be applied to the testimony of a witness in deter

p. 390

mining the degree of his credibility and the facts in evidence, Rice on Evidence, Yol. 2, p. 788; and under the illumination of these tests we cannot say that defendant falsely asserted that he never received the sum plaintiff claimed to have loaned him, and that he never applied for the alleged loan.

The judgment appealed from should be affirmed, with costs.

Gtegerich, J., concurs.