
    Josephine McQuade, as Administratrix, etc., Respondent, v. William Adams, Appellant.
    
      Supreme Court, Second Department, General Term,
    
    
      June 28, 1889.
    
      Appeal. Weight of evidence.—In an action to recover moneys loaned by plaintiff’s intestate, where the evidence of payment is uncertain in time and amount, and rests wholly upon the testimony of defendant, a verdict in favor of plaintiff, based upon the admission of defendant, should not be disturbed.
    Appeal from a judgment entered upon a verdict, and from an order denying a motion for a new trial.
    
      W. J. Powers, for appellant.
    
      Henry. D. Birdsall, for respondent.
   Barnard, P. J.

The complaint stated a loan of moneys by the plaintiff’s intestate to the defendant, and claimed a balance of $766, with interest. The answer admitted that the deceased loaned to the defendant various sum of money without stating the amount; and averred payment. Upon the trial it was proved that just after the death of the intestate the defendant stated to the administratrix that he owed the deceased for sums of money borrowed. Upon the trial the defendant testified that he borrowed $2,000 in all, and he testified to a full payment of the entire loan. The refusal of the trial judge to permit the defendant to-answer a question calling for a statement of a payment by defendant to deceased, was subsequently cured by the admission of the answer. The fact of payment thus became the only question for the jury to pass upon. The evidence of payment is uncertain in time and amount, and rests almost wholly upon the testimony of the defendant. The narrative is so rambling that an appellate court could not interfere with the verdict of a jury upon it. It is irreconcilable with the admission made to the widow just after her husband’s death.

The judgment should, therefore, be affirmed with costs.

' Pratt, J., concurs ,• Dykman, J., not sitting.  