
    Harry Mendoza, Respondent, v. George Levy, Appellant.
    Second Department,
    March 2, 1906.
    Evidence — uncorroborated evidence of plaintiff—when truth, thereof question for jury although defendant gives no evidence.
    In an action for money had and received the only evidence of the payment was the uncontradicted testimony of the plaintiff. The defendant gave ño evidence. -The plaintiff testified that he gave money to the defendant as a bet on a horse race; that the transaction was three years ago; that he could not tell how defendant looked; that other persons whom he did not produ’ce as witnesses were with him.
    
      SéZd,.that as the plaintiff’s testimony was uncorroborated, the . question of his payment to the defendant was for the jury and that a direction of a verdict, for " the plaintiff was error. '
    Appeal by the defendant, George-Levy, from a judgment of the Municipal Court- of the city of 17 ew York, borough of Brooklyn, in favor of the" plaintiff, entered in the office of the clerk Of said court on "the 3d day of March, 1905, upon the verdict of a jury rendered by direction of the court.-
    
      John J. Lindsay, for the appellant.
    
      Joseph F. Perdue, for the respondent.
   Jenks, J.:

The action is for'money had and received. . The-defendant offered no evidence. The court directed'a verdict for the'plaintiff,, overruling,'under exception, the request of the defendant for a submisr sion to the jury. As the case depends upon the uncorroborated, testimony of the plaintiff the question on this appeal is whether the general rule, as stated in Saranac & L. P. R. R. Co. v. Arnold (167 N. Y. 368), Or that general rule as modified and expressed in Hull v. Littauer (162 id. 569), should obtain in this case. The general rule stated in the first case supra is (pp. 373, 374): “ The general rulé is that where a witness is interested-.in the question, although.ile is not, impeached or contradicted, his credibility is a. question for the jury, and the court is not warranted in directing a verdict upon his testimony alone. (Gildersleeve v. Landon, 73 N. Y. 609; Kavanagh v. Wilson, 70 N. Y. 177; Elwood v. Western Union Tel. Co., 45 N. Y. 549; 29 Amer. & Eng. Encyclo. of Law [1st ed.], 774.) The same rule applies, to the testimony of two witnesses, both equally interested and testifying'to the same ■facts.” The general rule, as modified in the second case supra, As, (p, 572): Generally, the credibility of a witness,, who is a party to - the. action, and, therefore, interested in its result, is for the jury ; but this rule, being founded in reason, is not ran absolute, and inflexible' one. * *. * Where, however, the evidence of a party ■ to the action is not contradicted by. direct evidence, nór by any legitimate inferences from the evidence, and it is not opposed to the probabilities, nor, in its nature, surprising or suspicious, there is no reason for denying to it conclusiveness.”

We think that the rule of Saranac & L. P. R. R. Co. v. Arnold (supra) applies. The plaintiff testified that he went to a race track and made five bets on á horse named Clorita with different individuals, who were making bets in an inclosure. He testified that this defendant accepted his wager at certain odds, and called it out to another person who was writing near by, together with the number of thé entrance badge or ticket worn by the plaintiff. On cross-examination he testified that he never made a bet with Oliver Smith on that day, and that he never included Smith in his original complaint. Yet he was confronted with a complaint of such a character. He explains this variance by testifying that he trusted to his former attorneys. He also states that he never knew Smith until he saw him in Judge Martin’s court. He testifies that he made a verified complaint against the said Smith .and Rose in another action upon another bet because his counsel had told him that Rose and Smith w'ere connected. The transaction he testifies to occurred three years before. He testifies that two others were with him at the time, and yet he does not account for the absence, of one of his said companions. He could not recollect “ what sort of a looking man was this defendant.” He doubted' whether he would know him if he saw him. . We think that the court could not say that the defendant was not entitled to have the jury pass upon this testimony in that it was not open to examination on the ground of its truth, or its accuracy, or that there was no ground for suspicion that justified its scrutiny. At the same time we are far from saying that it would not support a verdict for the plaintiff.

.The judgment must be reversed and a new trial ordered, .costs' to abide the event.

Hirschberg-,' P. J., Hooker, Rich and Miller, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  