
    (44 Misc. Rep. 624.)
    SPRING v. MILLINGTON.
    (Herkimer County Court.
    August, 1904.)
    1. Witnesses—Credibility.
    Where, on a trial before a jury, defendant and one of his witnesses, to-no way discredited, testify to a fact within their own knowledge, which is neither improbable nor in conflict with other evidence, it cannot be disregarded by the court or jury, but must be taken as legally established.
    Appeal from Justice Court.
    Action by William Spring against Charles S. Millington. From a judgment for plaintiff, defendant appeals.
    Reversed.
    Charles Bell, for appellant.
    George M. Wirt, for respondent.
   DEVENDORF, J„

This action was brought to recover a balance of $5 on a $300 contract and for extra work and material to the amount of $30.55. The answer contained a general denial, plea of payment, and alleges damages for breach of contract by way of set-off and counterclaim. The contract mentioned was in writing, and plaintiff agreed thereby to m-av,e a barn for the defendant from one farm to another, and to place the same upon a stone wall, masonry foundation at the westerly end of a barn on the premises; the floors to be on the same level. There were other provisions in said contract, and it was provided further that the work was to be performed in a good, substantial,, workmanlike manner.

The plaintiff, upon the trial of the case, established a cause of action against the defendant, and, if the case rested upon plaintiff’s proof as to the cause of action alleged in his complaint, the judgment could be safely affirmed; but the defendant introduced proof showing that the plaintiff failed to perform the contract. Among other things, the uncontradicted evidence of the defendant and his witness shows that the plaintiff failed to do the work in a workmanlike manner, tie did not put the barn moved up against the other barn. Neither was it made water-tight where joined. ' One of the posts that held the purlin plate lacked several inches of touching the foundation. The floors were not level. The flooring was not properly laid. The wall was not sub- ' stantial or workmanlike in its construction. The siding was improperly put on. Hence it appears by the evidence introduced on the part of the defendant that plaintiff failed to perform his contract in= substantial particulars, and damages to a substantial amount resulted to the defendant. The plaintiff utterly failed to contradict the defendant’s evidence in that regard. I do not think the justice had a right to absolutely overlook such proof as was submitted by the defendant upon that branch of the case, as the same was neither contradicted or disputed by plaintiff. The plaintiff appears to have been present in court and sworn in his own behalf, and yet failed to say, otherwise than as had been shown by defendant, that he had failed in the particulars above mentioned to perform his contract, and that the damages alleged by the defendant consequently resulted.

The rule is well settled that where unimpeached witnesses testify distinctly and positively to a fact, and are not contradicted, the jury are not at liberty to disregard their testimony. Elwood v. Western Union Tel. Co., 45 N. Y. 549, 6 Am. Rep. 140; Kavanagh v. Wilson, 70 N. Y. 177. When a disinterested witness, who is in no way discredited, testifies to a fact within his own knowledge which is not of itself improbable or in conflict with other evidence, the witness is to be believed, and the fact is to be taken as legally established, so that it cannot be disregarded by the court or jury. Lomer v. Meeker, 25 N. Y. 361; Howe & Hummel v. Schweinberg, 4 Misc. Rep. 73, 23 N. Y. Supp. 607. The credibility of a witness is a question for the jury, but a jury is not at liberty to disregard the evidence of any witness, which is in no wise impeached, and whose testimony is such that its truth is highly probable. Denton v. Carroll, 4 App. Div. 532, 40 N. Y. Supp. 19. It may well be said thai the truth of the evidence of the defendant and his witness Metzler ir this case is highly probable. They testify in what respects the plaintiff failed to perform his contract; also their opinion as to the amount of the damages. The plaintiff is sworn in his own behalf, and does not say but that he left the barn in the same condition as described by the defendant and Metzler. It further appears from the defendant’s evidence that he had a conversation with the plaintiff in which plaintiff stated that he would go up then (in the spring) and make it right. As above stated, the testimony of the defendant and Metzler was not contradicted or sought to be. They were no< impeached, and there is nc circumstance in the record which tends to impeach their credibility • and, under such circumstances, the justice was not at liberty to disbelieve them, but should have given their evidence weight, and rendered judgment accordingly. Van Nostrand v. Hubbard, 35 App. Div. 201, 54 N. Y. Supp. 739.

After a careful-examination of the case, I am satisfied that a reversal is the proper and legal judgment to be rendered herein, and the judgment is reversed accordingly.

Judgment reversed.  