
    Frank Montero, Respondent, v. Robert P. Murphy, Appellant.
    (Supreme Court, Appellate Term, First Department,
    April, 1912.)
    Evidence — burden of proof — general principles — weight and sufficiency — judgments.
    . Where the testimony of plaintiff, upon whom rests the burden of proof, is flatly contradicted and there is no evidence to corroborate such testimony, no rule of law requires that defendant shall have judgment.
    Appeal by defendant from a judgment of the City Court of the city of Hew York, entered upon the verdict of a jury rendered in favor of the plaintiff and from an order denying a motion for a new trial.
    Max Henry Salzer (Julius Blumofe, of counsel), for appellant.
    Ingram, Root & Massey (Warren A. Schenck, of counsel), for respondent.
   Seabury, J.

The plaintiff sued to recover a balance alleged to be due for services rendered to and money laid out on behalf of the defendant in reference to the boat Athlete, owned by the defendant. The defendant denied that the plaintiff had rendered the service which he claimed to have rendered and contended that he had paid the plaintiff all that he owed him. The plaintiff testified in support of his claim and the defendant testified in opposition to it. Other witnesses were called but they did not testify to matters of any importance. The plaintiff went into considerable detail in explaining his claim. The testimony of the defendant was not so specific or definite. The issue was essentially one for the jury and their determination of the issue necessarily depended in a great degree upon their estimate of the credibility of the plaintiff and the defendant. Ho exceptions of merit are presented for our consideration. The learned court below submitted the case to the jury in a fair and comprehensive charge to which no exception was taken. We have carefully examined the whole record and can find nothing in it which would justify us in setting the verdict of the jury aside on the ground that it is against the weight of the evidence. As to the alleged disinterested witnesses who are claimed to have corroborated the defendant it is sufficient to point out that a careful examination of their testimony shows that upon the material issue in the case they did not corroborate the defendant and that some of them at least were not disinterested. Indeed, I think it might be said with accuracy that in several respects these witnesses called by the defendant corroborated the testimony of the plaintiff.

The appellant does not place his chief reliance upon these witnesses but rests it upon the fact that the issue submitted to the jury was supported only by the oath of a single witness.

In his bri'ef he says: “ It is a well known legal principle recognized by the Courts of this State, that when a party on whom rests the burden of proof testifies unqualifiedly in support of his contention and the other party unqualifiedly testifies to the contrary, and there is no evidence in the case corroborating him who had the burden of proof, he. fails to make out his case.”

In support of this supposed legal principle several authorities are cited and it must be conceded" that the statement quoted is but a repetition.of the statements made in several cases. See Campbell Printing P. & Mfg. Co. v. Yorkston, 11 Misc. Rep. 340; Lummis v. Van Dyck, 17 App. Div. 621, and cases cited.

The statement made by the appellant is not a correct statement of any legal principle which is recognized in the jurisprudence of this State. Our law except in a few rare instances has abandoned the numerieál test for ascertaining truth. It is now a common thing for a judge to charge the jury that they .are to’^weigh the evidence, not merely to count the witffe'sie^'-iiklí'éii SjC'the respective parties. Our law prescribes no precise formula by which the weight of testimony can be determined. The opportunities of the witness for accurate observation, the manner of the witness in giving his testimony, the way the witness conducts himself under direct and cross-examination, the inherent probability or improbability of his testimony, are guides which may aid us in measuring his credibility, but these considerations are far from furnishing us with an accurate scale by which to ascertain its exact weight. It would doubtless be easier to reach a result by counting the witnesses but this practice has been abandoned as the result of experience.

The unjust and absurd results which were reached when the numerical test was formerly applied is apparent from an examination of some of the cases contained in the old books. Professor Thayer has referred to several of them and the startling results obtained ought to be sufficient to preclude our returning to such a system. If'the appellant’s contention is sound and if any such principle of law exists a party would be denied a recovery in almost every case where he had no witnesses to corroborate him. In many cases he could not recover if the person sued chose to contradict him.

The supposed legal principle contended for by the appellant and the cases cited above which hold to the same effect are but the “ waning echo of the ancient formalism ” which once prevailed but which has been displaced from our modern law of evidence.

Mr. Chamberlayne well says: “ It is a salient characteristic of the modern English law of evidence that it has, except in treason, perjury and a few other instances abandoned, though with some difficulty, its earlier rules, more in accordance with other systems of jurisprudence requiring a specified number of witnesses. Numerical tests for truth are common in the civil law of continental Europe which follows, in this respect, the later Roman jurisprudence. The rule of the earlier French system was in accordance with this almost universal view, and so continued down to a comparatively recent period.” Mod. Law Ev. § 989. ......

It has been said that: “ It was Constantine who first laid , down- the arbitrary rule that one witness did not suffice; and the canon law accepted the principle with the more respect because it was sanctioned in Deuteronomy.” Cited by Professor Wigmore in note 2, § 2032, p. 2695.

Professor Thayer speaking of the early mode of “ trial by witnesses ” says: “ There was no test by cross-examination; the operative thing was the oath itself, and not the probative quality of what was said, or -its persuasion on a judge’s m-ind.” Thayer Ev. 17.

Professor Wigmore commenting on the same subject, says: “All through the Saxon- and Herman times, the oath is a verbal formula, which, if successfully performed without immediate disaster, is conceded to be efficacious per se, and-irrespective of personal credit. * * * This numerical conception is inherent in the general formalism of it.” Wig. Ev. § 2032, p. 2698.

Issues of fact are no longer determined by what... Mr. Justice Stephen called “ the dead weight of an oath.” Hist. Crim. Law, 400.

“ The probative value of a witness’ assertion is utterly incapable of being measured by arithmetic ” says Professor Wigmore. “All the considerations which operate to discredit testimony affect it in such varying ways for different witnesses that the net trustworthiness of each one’s testimony is not to be estimated, either in itself or in reference to others’ testimony, by any uniform numerical standard. Probative effects are too elusive and intangible for that. The personal element behind the assertion is the vital one, and is too multifarious to be measured by rule.” Wig. Ev. § 2033.

In summing up his review of the matter based upon many of the authorities cited by -Wigmore, and some of which are referred to above, Mr. Chamberlayne says: “ Ho numerical, or other physical tests for truth obtains, as a rule, in the English law of evidence. Few -propositions are presented for judicial determination which may not be satisfactorily established by the evidence of a single witness. A mere numerical preponderance in witnesses produced by one side as to a given point over those produced by the other side can no long’er automatically control the decision of a court. A jury may reasonably and properly credit a single witness against many. Hor, on the contrary, is a witness who is uncontradicted,, and not directly impeached, entitled as of right to be believed.” § 991; see also Callanan v. Shaw, 24 Iowa, 441, 444; United States v. Lee Huen, 118 Fed. Rep. 442, 457.

Speaking of the “ lurking tendency ” that still exists to believe that there is a legal necessity for more than one witness, the same author says: “ This is but a recrudescence of the ancient formalism. Occasionally, it has been said that the rule of law was to that effect. This is obviously an error.”

The same 'subject is extensively dealt with in the notes to- Hr. Wigmore’s invaluable work. We have called attention to the matter here, because of the frequency with which the proposition urged by the appellant is pressed upon us as ground for the removal of judgments.

Guy and Bijur, JJ., concur."

Judgment affirmed, with costs.  