
    KATZ v. FRIEDMAN.
    (Supreme Court, Appellate Term.
    May 27, 1909.)
    Evidence (§ 588)—Weight and Sufficiency.
    A judgment for plaintiff, on the theory that the testimony of defendant and his witnesses is false, cannot be upheld, unless it appears that such testimony is on its face so improbable as to be manifestly incredible.
    [Ed. Note.—For other cases, see Evidence, Cent. Dig. §-2437; Dee. Dig. § 588.]
    Appeal from Municipal Court, Borough of Manhattan, Second District.
    Action by Jacob Katz, as receiver, against Isaac Friedman. From a judgment for plaintiff, defendant appeals.
    Reversed.
    Argued before DAYTON, SEABURY, and LEHMAN, JJ.
    Abraham S. Weltfisch, for appellant.
    Arthur C. Mandel, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   PER CURIAM.

Plaintiff was appointed receiver of premises January 5, 1909, and brought this action to recover the January rent from defendant, a tenant. The testimony betrays a series of discreditable real estate transactions relating to the title, in which, however, the defendant, a long-time occupant had no part. He swore that he paid his rent for January to the then record owner before the plaintiff was appointed. He was corroborated by other oral testimony, though he produced no receipt. The court gave judgment for the plaintiff, evidently upon the theory that the defendant and his witnesses testified falsely. This theory cannot be upheld, unless it appears that the testimony on its face is so improbable as to be manifestly incredible. While there is much to criticise as to some of the witnesses, no ade-' quate reason is given for entirely disregarding the prima facie defense of payment.

The judgment should be reversed, and a new trial granted, without costs.

LEHMAN, J., concurs in result only.  