
    LITZKY v. HOROWITZ et al.
    (Supreme Court, Appellate Term.
    March 11, 1904.)
    1. Appeal-Credibility op Witness.
    A judgment depending on the credibility of witnesses will not be disturbed on appeal.
    Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.
    Action by David Litzky against Philip Horowitz and others. From a judgment for defendants, plaintiff appeals. Affirmed.
    Argued before FREEDMAN, P. J., and GIEGERICH and McCALL, JJ.
    A. I. Spero, for appellant.
    Manheim & Manheim, for respondents.
   McCALL, J.

Plaintiff, claiming that he had deposited with A. Sam-berg & Co., his employers, the' sum of $300 as security, and that, when he was discharged, Samberg & Co-, gave him a postdated check, made by the defendants, for that amount, brought this suit to recover the amount of such check. He was the only witness in his own behalf. There was undisputed testimony that the defendants loaned the firm of Samberg & Co. the check, dating it ahead, and, upon ascertaining that Samberg & Co. had gone into bankruptcy, stopped payment thereon. Three witnesses on the part of' the defendants testified that the plaintiff came to the defendants’ place of business, and said he had been sent by Samberg & Co. to find out why payment on the check had been stopped, and that at that time he not only made no claim to ownership of the check, but said to one witness, “I have nothing to do with the case.” His own testimony as to when he deposited the security was contradictory, and, although Samberg was put upon the stand, it was not shown by him that plaintiff had deposited security, nor did it appear what the security was for. The justice evidently considered the plaintiff’s testimony improbable, under all the circumstances, as he had a right to do (Elwood v. Western Union Tel. Co., 45 N. Y. 554, 6 Am. Rep. 140), and his decision should not be disturbed.

Judgment affirmed, with costs. All concur.  