
    Jeremiah Enright, Resp’t v. James M. Seymour, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 5, 1893.)
    
    Money paid—Burden of proof.
    In an action for money paid at defendant’s request the plaintiff testified to a request, "which defendant denied. There was also testimony of several witnesses that plaintiff’s reputation for truth and veracity was bad. Held, that the burden of proof rested with plaintiff, and that a finding in his favor was erroneous.
    Appeal from a judgment for plaintiff recovered in the district court in the city of New York for the tenth judicial district
    Action to recover money alleged to have been paid, laid out and expended at defendant’s request.
    
      Samuel E. Duffey, for resp’t; Henry Thompson, for app’lt
   Bischoff, J.

Upon allthe evidence I am of the opinion that the judgment of the court below is emphatically against the weight of the evidence, and that it should be reversed and a new trial ordered.

Plaintiff sued defendant to recover the sum of $250, which he claimed to have paid to one John Perdue at defendant’s request, for the purpose of effecting a settlement of differences between defendant and one Michael Grogan which arose from an altercation between Grogan and defendant’s son and servants. Assuming the evidence to be sufficient to show that plaintiff paid the sum to Perdue, it still remained to ascertain that it was so paid at defendant’s request, and the burden of proof in that respect rested with plaintiff. The latter testified to the fact of such a request. Defendant testified in denial of it. This at most created a conflict of testimony which the trial justice could determine upon the degree of credibility which he saw fit to attach to the statements of the witnesses respectively, after making due allowance for their personal interests in the result of the litigation, and their manner and appearance on the witness stand ; and with his determination under such circumstances only, we should hesitate to interfere.

But there was also testimony of a number of witnesses from which it appeared that plaintiff’s general reputation for truth and veracity was bad and that he was not to be believed under oath. A due consideration of that evidence cannot, in my opinion, fail to determine the preponderating effect of all the evidence in defendant’s favor.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event

Pryor, J.

I concur with Judge Bischoff, in the conviction that plaintiff’s story is incredible, and his claim altogether untenable.  