
    Hyman Schnitzer, Appellant, v. Louis Gordon, Respondent, Impleaded with Louis Rosuck.
    
      Action for a loan — a note produced, to discredit testimony that a note was not given for the loan — credit to he given to an interested witness — waiver of a defect in a denial, in the form of a negative pregnant—refusal to charge that onés hooks are not evidence in his favor — refreshing memory hy the use of hooks of account.
    
    Where, in an action to enforce payment of an alleged loan, the plaintiff testifies that the defendant gave him no note therefor, the defendant may properly put in evidence a note of the defendant, bearing the same date as that of the loan and of the same amount, which has been deposited for collection by the plaintiff, and which is produced by the defendant at the trial, although the plaintiff testifies that such note related to another transaction'—especially where such note tends to support a defense to the effect that a note had been given for the loan and was afterwards paid.
    The court may properly charge the jury that, “ as to a witness who is disinterested and not impeached in any way, the testimony given is not to be disregarded, but where a person is interested in a case, 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.”
    In an action on a noté made by the defendant to a-third party, who;, as alleged in the complaint,- “ thereafter duly indorsed and delivered the said note for value to the plaintiff,” the answ’er denied any knowledge, or information sufficient to form a belief as to this allegation — repeating it, in terms, in the denial. The plaintiff did not, upon the trial, object to the form of the denial.and treated it as though it were sufficient, although he requested a - charge that there was no contention as to this cause of action and that lié was entitled -to recover upon that at least.
    Upon an appeal by the plaintiff from a judgment in favor of the defendant, it was Held, that the conduct of the plaintiff had precluded him from insisting upon the appeal that the denial did not put in issue-an indorsement and delivery of the note, but merely denied that it was indorsed and delivered for value; . ' That the request to charge implied that there was no contention upon the merits — not that the allegation of the complaint was admitted because the denial in form amounted to a negative pregnant;
    That whatever remedy the plaintiff might have 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.
    Where the testimony of a plaintiff is confused and conflicting as to his having received a note for-a loan, and upon-Ms cross-examination a reference is made-to his books of account, it is not improper for the court to refuse to charge, at his request, that the plaintiff’s books were not evidence in his favor, and that, “if he did produce them he could not use them to support his own claim or contention,” where the court charges 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,” and no further exception is taken by the plaintiff.
    
      Semble, that it was quite conceivable that any original entry made by the plaintiff on the subject might have been.admissible to clear up the doubts caused by his defective memory.
    Appeal by the plaintiff, Hyman Schnitzer, from a judgment, of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 1st day of October, 1897, upon the verdict of á jury, and also from an order entered in said clerk’s office on the 15th day of October, 1897,. denying the plaintiff’s motion for a new trial made upon the minutes.
    Three causes of action aré 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 $2,729.33. The defendant Gordon alone defended. The jury found a general verdict in his favor. .
    
      
      Harold Nathan, for the appellant.
    
      Jacob Manheim, for the respondent.
   Barrett, J.:

The plaintiff was the only witness called upon the trial. He testified, first, as to the second cause of action, namely, the loan of $1,000, stating that it was made by check, and that the defendant gave him no note therefor. This was his testimony: “ I did not get a note at this time. I did not have any note of Hr. 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 was produced by the defendants at the trial. It was certainly admissible. It was proper in cross-examination to weaken the force of the 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 another transaction. The jury might have disbelieved this statement, especially in view' of the plaintiff’s false testimony that he 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 not 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 cir eft instances 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 cau'se of action. This was upon a note alleged to have been made by the "defendants to one H. Schnitzel’, “who thereafter,”, to quote the language of'the complaint, “" duly endorsed, and delivered, the said note for value" to the plaintiff, who is now the owner and holder thereof.” The answer denies 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. Schnitzel’ to the plaintiff, but only its.iiidorsement and delivery for value. His claim is that he took title to the.note 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 plaintiff’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 was 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 is no contention,, and plaintiff is entitled to recover, on that cause of action at least.” But even here he failed to point out any defect in the pleading. If he had done so^ the court might well have permitted the words “for valué” 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 have 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. Erie Railroad Co., 45 N. Y. 468; Wall v. Buffalo Water Worlds Co., 13 id.. 119 .• Boffman v. Susemihl, 15 App. Div. 405.)

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 hound to credit it.

The remaining question is as to the refusal of the court to charge that the plaintiffs boobs were not evidence in his 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 : “ I decline to charge that as stated.” The only reference made to the plaintiff’s boobs 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 his confused and conflicting statements as to whether he actually received a note for the loan specified in his 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 his memory, or, uj)on 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. ■

Vak Brunt, P. J., Rumsey, Patterson and O’Brien, JJ., concurred.

Judgment and order affirmed, with costs.  