
    SCHNITZER v. GORDON et al.
    (28 App. Div. 341.)
    (Supreme Court, Appellate Division, First Department.
    April 22, 1898.)
    1. Witness—Credibility.
    A glaring misstatement of fact was made by an interested party upon the witness stand, under circumstances which seemed to exclude any reasonable excuse. Held, that this would warrant the -jury in disbelieving his uncorroborated testimony upon other points.
    2. Action on Note—Pleading—Evidence.
    In an action upon a promissory note, the complaint alleged that it was made by defendants to one S., “who thereafter duly indorsed and delivered the said note for 'value to the plaintiff,” etc. .The answer denied any knowledge or information sufficient to form a belief as to this allegation, repeating it in terms in the denial. Plaintiff took no objection to the form of the denial as "involving a negative pregnant, either before or at the trial. Held,, that under the circumstances it was Clearly sufficient to raise an issue calling'for proof upon the trial of indorsement and delivery to the plaintiff.
    Appeal from trial term, New York county.
    Action by Hyman Schnitzer against Louis Gordon, impleaded with Louis "Rosuck. From a judgment on a verdict, and from an order denying a motion for a new trial, plaintiff appeals.
    Affirmed.
    Three causes-of action are alleged in the complaint. The first is upon a promissory-note for $500, made November 23, 1894; the -second upon a loan of $1,000, made December 13, 1894; the third upon an account -stated of $2,729.32. The defendant Gordon alone defended. The jury found a, general verdict-in his favor.
    Argued before VAN BRUNT, P. J., and BARRETT, RÜMSEY, PATTERSON, and O’BRIEN, JJ.
    Harold Nathan, for appellant.
    Jacob Manheim, for respondent.
   -BARRETT, J.

The plaintiff was the only witness called upon the trial. He testified first as to-the second cause of action, namely, Hie loan of "$1,000, stating that it was made-by check, and that the defendant gave him no note therefor. This was his testimony: ‘T did not get a note at this time. I did not have any note of Mr. Gordon’s dated December 13, 1894. I am quite certain of that.” The counsel ‘-for 'the respondent conclusively proved the falsity of this Testimony'by putting;in evidence a note of the defendants"'for $1,000, dated December 13,1894, which-the'plaintiff had deposited for collection, and which apparently had been taken up, as it wa-s produ ced by the defendants at the trial. It was - certainly admissible. It wa-s proper in cross-examination to weaken 1lie force of Hte plaintiff’s testimony, and it Tended directly to support the-defense to the second cause of action, which was that the note had been given for the loan, and was afterwards paid. It was not rendered inadmissible because the plaintiff testified that it related to anolher transaction. The jury might have disbelieved this state-men t, especially in view of the plaintiff’s false testimony that lie never had any note of Gordon’s dated December 13, 1894. In his charge the trial judge called the jury’s attention to the misstatement, and said: “As to a witness who is disinterested, and not impeached in any way, the testimony given is mot to "be disregarded: but where a person is interested in the outcome of his case, and gives testimony, you-are at liberty, if he has testified falsely in any material respect, to disregard his testimony.” This charge was quite correct. It was, in fact, more favorable to the plaintiff than the circumstances required. Certainly, the jury are not bound to believe the testimony of an interested party when there are circumstances throwing doubt upon its truth. The glaring misstatement of the plaintiff-here upon a material point, for which it is difficult to find an adequate excuse, warranted the jury in disbelieving his uncorroborated testimony. This, too, must be borne in mind in considering the remaining questions. What has been said is enough to show that the verdict of the jury as to the second cause of action is not to be disturbed.

The plaintiff’s counsel asked for the direction of a verdict upon the first cause of action. This was upon a note alleged to have been made'by the-defendants to one H. Schnitzer, “who thereafter,” to quote the language of the complaint, “duly indorsed and delivered the said note for value to the plaintiff, who is now the holder and owner thereof.” The answer d°enies any knowledge or information sufficient 'to form a belief as to this allegation, repeating it in terms in the denial. The plaintiff contends that such a denial does not put in issue the indorsement and delivery of the note by H. Bchnitzer to the plaintiff, but only its indorsement and delivery for value. His claim is that he took title to themote by its Indorsement and delivery to him, whether he gave value or not. This latter claim is, doubtless, well founded, but it'does not solve the question. The difficulty with the plain! ill’s position is that he went to trial upon the answer without objecting in any manner to the form of the denial. And, moreover, he gave evidence-in support of the averment, quite as though the denial were sufficient. Nor did he suggest upon the trial that the denial was defective. It is "true that he asked the court to charge the jury “that [as to the first cause of action] there was no contention, and that he was entitled to recover upon that at least.” But even here he failed to point nut any defect in the pleading. If he had done so. the court might -well have permitted the Avords “for value” to be stricken from the denial. What the plaintiff’s motion implied was that there was no contention upon the merits, not that the allegation was admitted because the denial in form amounted to negative pregnant. But, whatever remedy the plaintiff might haA7e had with regard to such , a denial prior to .the trial, it was clearly sufficient to raise'an issue calling for proof upon the trial. Thompson v. Railway Co., 45 N. Y. 468: Wall v. Waterworks Co., 18 N. Y. 119; Hoffman v. Susemihl, 15 App. Div. 405, 44 N. Y. Supp. 52.

The account stated alleged in the third cause of action seems, according to the plaintiff’s rather confused testimony, to have been represented by five notes made by H. Cohen & Co., and indorsed by .the defendant. These notes were not produced or proved; and the plaintiff, after making some conflicting statements, finally said that he had returned them all to the defendant. The same thing is true of this testimony as of that relating to the second cause of .action. The jury were not bound to credit it.

The remaining question is as to the refusal of the court to charge that the plaintiff’s books were not evidence in Ms favor, and that “if he did produce them he could not use them to support his own claim or contention.” The request, under the circumstances, was too broad, and the trial judge indicated as much when he said, “3 ■decline to charge that as stated.” The only reference made to the plaintiff’s books upon the trial was in his cross-examination. He admitted that he kept books in which he entered the moneys which he paid out and the notes which he thereupon received. In view of Ms confused and conflicting statements as to whether he actually received a note for the loan specified in Ms second cause of action; in view, too, of the production by the defendants of a note apparently for the amount of that loan,—it is quite conceivable that any original entry made by him on the subject might have been admissible to clear up the doubts caused by his defective memory. It was not, to say the least, absolutely certain that such original entry, made by the plaintiff himself at the time when the loan was made, would have been inadmissible. The request was doubtless aimed at the possible effect upon the-jury of the plaintiff’s failure to produce such original entry, either to aid Ms memory, or, upon continued failure of memory, as original evidence. The court declined to charge the proposition “as stated,” and then charged that, “if either party desired to have the books of the other, he might have taken the legal steps to secure their production in court.” The plaintiff’s counsel seems to have been satisfied with this latter instruction, for he made no further exception, and the matter rested there. Upon the whole, we think the case was fairly submitted to the jury, and that the verdict should not be .disturbed.

The judgment and order denying the plaintiff’s motion for a new trial should be affirmed, with costs. All concur.  