
    Andrew Roseberry, Resp’t, v. Kate M. H. Nixon, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 24, 1890.)
    
    1. Trial—Charge.
    Remarks made to counsel during the submission of a case cannot be made the ground of error where they form no part of the instructions to the jury, and the jury are expressly told to disregard them.
    2. Same—Direction op verdict.
    Although a witness for defendant testifies directly and positively to facts constituting a defense and is uncontradicted, if he may be biased by his interest the case is one for the jury, and a refusal to direct a verdict is proper.
    Appeal from judgment entered upon verdict at circuit.
    
      E. Bartlett, for app’lt; Cornelius Fislce, for resp’t
   Van Brunt, P. J.

This appellant claims a reversal of this judgment upon two grounds: First, because the court refused to direct a verdict, and second, because of some remarks which the court made in submitting the case to the jury.

The last objection is clearly untenable, because the judge expressly told the jury to disregard what he had said to counsel and that which is objected to formed no part of his instructions to the jury.

The court was right in refusing a direction. It is undoubtedly true that the general rule is that where a witness testifies distinctly and positively to a fact and is uncontradicted, his testimony should be credited; but this rule is subject to many qualifications. One is that where a witness may be biased by his interest, the case is one for the jury. Elwood v. The Western Union Telegraph Co., 45 N. Y., 549.

The same principle has been held in numerous other cases. This interest need not necessarily be pecuniary; it may arise from the relationship of the witness to one of the parties. The only witness to prove the defendant’s case was the husband and agent of the defendant, having an interest in the success of the defense; in fact a party to it. The court was bound under this condition of the evidence to submit the question to the jury.

The judgment appealed from should be affirmed, with costs.

Brady and Daniels, JJ., concur.  