
    BROWN et al. v. COHEN et al.
    (Supreme Court, Appellate Term.
    November 29, 1905.)
    Trial—Introduction of Evidence—Cumulative Evidence—Refusal to ■ Hear Witnesses.
    Where the only Issue In the case is' one of fact, and defendants produced three witnesses on their side and offered to produce two more, it was error for the trial justice to refuse to hear the additional witnesses, on the ground that their testimony would be merely cumulative, and to thereupon resolve the question of fact in favor of plaintiffs.
    Appeal from Municipal Court, Borough of Manhattan, Fifth District.
    Action by Abraham Brown and another against Morris Cohen and another. From a judgment for plaintiffs, defendants appeal.
    Reversed.
    Argued before SCOTT, P. J, and GILDERSLEEVE and Mac-LEAN, J J.
    Stanislaus N. Tuclcman, for appellants.
    Walter A. Saxon, for respondents.
   SCOTT, P. J.

The only question in the case was one of fact; i. e., whether or not plaintiffs had been paid. The defendants produced three witnesses to support the plea of payment, and offered to produce two more; but the justice refused to hear them, because their testimony would be merely cumulative. Thereupon the justice resolved the question of fact in favor of plaintiffs. The only justifiable reason in this case for refusing to hear cumulative evidence would be that the fact to prove which the evidence is offered was already sufficiently proven; and, unless the justice was satisfied that the plea of payment had been sustained, he should not have refused to hear the corroborative testimony.

Judgment reversed, and new trial granted, with costs to abide the event. All concur.  