
    John B. Brook and George M. Porter, Respondents, v. Rose R. Kalfon, Doing Business as Randall’s Painless Dentistry, Appellant.
    (Supreme Court, Appellate Term,
    March, 1908.)
    Evidence — Weight, and sufficiency — TJncontradicted testimony — What circumstances will warrant disbelief.
    Where, in an action to recover the price of goods sold, the purchaser defends on the ground of her infancy and, upon the trial, her uncle is called as a witness in her behalf and testifies that she was born on a certain day which would establish her infancy at the time of the sale, although his testimony is uncontradicted and he is not impeached, yet the court having an opportunity to see the defendant, and she testifying that at the time of her marriage she truly stated to the alderman who performed the ceremony what her age was, and it appearing that if her uncle’s testimony was true she had not then reached the age of legal consent, the presumption that the alderman did not violate his duty in marrying the defendant coupled with the opportunity for observing the defendant’s personal appearance, was sufficient to warrant the court in disregarding the evidence of the uncle and rendering a judgment for the plaintiff.
    MacLean, J., dissented.
    Appeal T>v the defendant from a judgment in favor of the plaintiffs, rendered in the Municipal Court of the city of New York, seventh district, borough of Manhattan.
    Foster & Cunningham, for appellant.
    Samuel Fine, for respondents.
   Bischoff, J.

There was no question as to the fact of the sale and delivery of the goods to the defendant, and a recovery was resisted solely upon the affirmative defense of infancy. To support this defense a witness was called who testified that he was an uncle of the defendant; that at the' time of her birth he was living in- the house where she was born, and that the date of her birth was March 8, 1890. The goods in suit were supplied at the order of the defendant’s husband and were delivered at her place of business, of which her husband had been placed in apparent charge. Called as a witness, the defendant stated that she had filed a certificate that she was doing business under the name of Randall’s Painless Dentistry, and that she was married on December 6, 1906, before an alderman of this city. "Upon the proof before the justice, we find no reason for disturbing this judgment for the plaintiffs, since the weight of evidence was not necessarily in favor of the defense of infancy. The testimony of the single witness, Levy, called to establish the defendant’s nonage, was not conclusive and could be opposed by the inferences which the justice might draw from the appearance of the defendant as well as from the fact of her marriage at a time when, if Levy’s testimony were correct, she was far from the age of -legal consent. On cross-examination, she testified that, at the time of her marriage, she knew her true age and stated it to the alderman; and it is but a fair inference that her true age, when so stated to the alderman, must have been considerably greater than that testified to by Levy, if the official was content to perform the ceremony. In this view, Levy’s testimony — the only evidence of infancy — was so far infirmed as to render it of no particular weight upon the question of the actual date of the defendant’s birth.

The judgment should be affirmed, with costs.

Gildersleeve, J., concurs.

MacLean, J.

(dissenting). The birth of the defendant having been testified to by her uncle as occurring within his own knowledge on March 8, 1890, at Ho. 376 Grand street, where he then was living with his sister, and he not having been shown to be in anywise interested in the outcome of the cause, and his testimony having been neither contradicted nor rendered improbable by other evidence, the fact of her infancy pleaded in bar is to be taken as a legally established fact (25 N. Y. 363; 70 id. 179), not nullified by any presumption legitimately presumable from her statements that she knew her age (without mentioning it) and that (without telling what she said) she stated her age to the alderman who married her, non constat, with her parents standing by and consenting to his credence of a misleading statement.

Were it material, it might be presumed that the alderman did his duty. To presione the defendant’s age from his act would base a presumption upon a presumption which may not be by court or jury. The presumption that public officers have done their duty is undoubtedly a legal presumption, but it does not supply proof of a substantial fact. • Whenever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved and not themselves presumed. United States v. Ross, 92 U. S. 281. “ The only presumptions of fact which the law recognizes are immediate inference from facts proved.” Manning v. John Hancock Mut. Ins. Co., 100 U. S. 693.

Whether the defendant as she appeared in court impressed the experienced justice as a young- girl or a woman grown is not returned in the record. His indignation at somebody or something does transpire from an ebullition that he would have an indictment drawn. But that offending, too, is intangible. Hpon the case before this court, the judgment should have been for the defendant.

The judgment appealed from should be reversed.

Judgment affirmed, with costs.  