Hyperlawhypertext legal database Johnson v. Williams 39 N.Y. Super. Ct. 547

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Johnson v. Williams

39 N.Y. Super. Ct. 547 7 Jones & S. 547 Court N.Y. Super. Ct. Decision date 1875-05-03 English

Delivered by *548 By the Court.—Sedgwick, J.

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p. 547
WILLIAM JOHNSON, Plaintiff and Appellant, v. ROBERT A. WILLIAMS, Executor, Defendant and Respondent.

Headnote

testimony undisputed.
1. When not to be regarded as undisputed although not
SPECIFICALLY CONTROVERTED.
1. When there is enough in the ease to allow of its construction in connection with the other facts, and to justify the result that although the witness was in general credible yet was incorrect as to the particular testimony in question. e.g. Where a witness swears that the work set forth in a certain bill was extra, token it is quite plain from, the faca of tke list that it contains many items which could not have been extra work.
Before Sedgwick and Speir, JJ.
Heard March, 1875;
Decided May 3, 1875.
Appeal from judgment for plaintiff on report of referee.
A. S. Diossy, attorney, and M. Hand, of counsel for appellant.
S. G. Courtney, attorney and of counsel for respondent.

On the argument but one reason was stated, why there should be a reversal. It was said that the plaintiff testified that he did certain pieces of work beyond the original contract, at request of the defendant’s testatrix, and which the plaintiff swore were correctly stated as to the kind and value in a list put in evidence and that appears in the record here; that there was no evidence that this testimony of plaintiff was incorrect, and, therefore, the referee should have acted upon it as undisputed evidence. The answer is two-fold. First. There was enough in the case to allow and perhaps call upon the referee not to take the words of the witness, but to construe his testimony in connection with the other facts, and to justify the result that although in general the plaintiff was a credible witness, still the so-called extra work had been within the verbal original contract. Second. The learned counsel is mistaken in thinking that this evidence was not contradicted. The defendant gave evidence which, if believed, palled upon the referee to disregard the contents of the list, except in certain respects. Moreover it is quite plain from the face of the list, that it contains many items which could not have been extra work.

Judgment should be affirmed, with costs.

Speir, J., concurred.