
    SPECK v. BERLINER.
    (Supreme Court, Appellate Term.
    November 30, 1903.)
    1. Services—Contract with Deceased Person—Questions for Jury.
    In an action on a contract for services alleged to have been made with a deceased person, the making of the contract, etc., should be submitted to the jury whether the evidence was contradicted or not.
    Appeal from City Court of New York, General Term.
    Action on a contract for services by Samuel H. Speck against Birdie Berliner. From a judgment in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals.
    Affirmed.
    Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.
    David Bernstein, for appellant.
    Josiah Canter, for respondent.
   BISCHOFF, J.

The testimony of the plaintiff’s witness, upon the issue of the agreement with the deceased was placed in dispute by the testimony of the widow to the effect that the deceased, at the time of the alleged making of the agreement, was in her company, and not at the place where the agreement was claimed to have been made. If uncontradicted, however, the testimony as to a transaction with a deceased person was not conclusive, but was to be weighed by the jury in connection with the circumstances of the case (Hughes v. Davenport, 1 App. Div. 182, 37 N. Y. Supp. 243; Van Slooten v. Wheeler, 140 N. Y. 624, 35 N. E. 583), and in view of the circumstances presented by the record before us we find no possible reason for disturbing the jury’s conclusion.

Questions allowed on cross-examination, to which our attention has been called, brought out nothing prejudicial to the objecting party, and there is no ground for reversal in the other minor matters referred to by the appellant.

Judgment affirmed, with costs. All concur.  