12 N.Y.S. 808 | N.Y. Sup. Ct. | 1891
The complaint alleged that “on the 3d day of May, 1884, at Little Valley, N. Y., the defendant made his promissory note, dated that day, whereby, by the name of E. J. Gunn, he promised to pay to Sally Kelly or bearer two hundred dollars, with use, one year from the date thereof;” and that the said Sally Kelly, for valúe received, sold, transferred, and delivered the said note to the plaintiff. On the trial the pláintiff produced and put in evidence a paper purporting to be a promissory note, in the terms above stated, but which bore on its face the name “E. J. Gun” as that of the maker. She testified that in May, 1844, she was living with Sally Kglly, who was her grandmother; and that the defendant some time in that month brought the note in evidence to Mrs. Kelly, and delivered it to her, and told her it was for money he had of her; that her grandmother could not read, and the defendant read the note to her; that in August, 1884, her grandmother gave her the note for labor, and told her if Mr.Gunn did not pay it to sue it; that she lived with her grandmother about three or four years, and took care of her for twelve shillings a week; that she never spoke to Mr. Gunn about the note, except that in March before it became due she asked him if he was going to pay it, and he said he would pay it in the spring. She testified that before the note was given the defendant was often at her grandmother’s house, and she “heard talk between them in re
In Syms v. Vyse, 2 N. Y. St. Rep. 106, it was held by the general term in the first department that in a case where both parties were sworn and contradicted each other directly, and no circumstance corroborating either appeared by the record, the burden of proof, which was upon the plaintiff, was not successfully borne, and a verdict in his behalf could not be sustained; and the cases of Raines v. Totman, 64 How. Pr. 493, and Losee v. Morey, 57 Barb. 561, were cited as authority for the decision. The present case is a much stronger one for the application of the rule of the burden of proof. Here the plaintiff made no proof except by her own testimony, which was not corroborated by any circumstance, but was contradicted in every particular by the defendant; and her credibility as a witness was strongly impeached. The testimony of the defendant, on the other hand, was corroborated by the evidence, which tended to show that the note and its signature were not in his handwriting, which was as satisfactory as evidence upon that question can often be made. There was also in this case a circumstance which was entitled to some weight against the plaintiff. That tvas the fact that the plaintiff had it apparently in her power to call a witness who, if her testimony was true, was, besides the parties, the only living eye-witness of the transaction upon which her cause of action depended, and she neglected to call him. That witness was John Gleason, the man with whom she was living at the time of the trial, and had lived for several years; w'hose relations to her were apparently not unfriendly, and who knew whether the testimony she had