93 N.Y.S. 640 | N.Y. App. Div. | 1905
j This action is brought to recover the sum of $2,000, together with interest thereon, alleged to have been loaned to the defendants’ testator by the plaintiff. The complaint avers that the plaintiff loaned ánd advanced to Arthur J. Heaney, deceased, the sum of $2,000 upon the 26th and 28th days of September, 1900, which the deceased promised to repay upon demand with interest; that the
It was disclosed by the evidence that the plaintiff was at the time the loan is claimed to have been made a bookmaker, engaged in making books upon the result of various horse races run at the race tracks existing under the jurisdiction of the Jockey Club of the State of New York. The claim of the plaintiff, in the main, rests upon the testimony of Charles F. Bull, Jr., who was at the time when the loan is claimed to have been made in the employ of the plaintiff as a cashier, and was then working for the plaintiff, as he testified, at the Sheepshead Bay race track. Buh is still in the employ of the plaintiff. The transaction, as stated by him, was that Heaney applied to him for tlie money and that the plaintiff directed it to be paid to him; that he gave Heaney $200 on the 26th day of September, 1900, and the balance the next day or the next racing day; that, so far as he knew, Heaney had never repaid tlie same. After the alleged loan, but at what time does not appear, Buh' testified he called upon Heaney to collect the money; that Heaney said he was short of money and all tied up, but that he would pay as soon as possible; that he called upon him three or four times for payment, but always received the same answer. The plaintiff kept books, in which Buh stated an entry was made of' the transaction. These books were subsequently destroyed either by the plaintiff or Buhv Prior to their destruction, Buh made in a book which he carried upon his person an entry of the $2,000. Otherwise there 'yas no written evidence of the transaction. He also testified that the loan was made at Sheepshead Bay, but subsequently corrected
The defendants called but one witness, Matthew S. Whelen, who testified that prior to the death of Heaney he was manager for him in the pawnbroking business and had been with him about t.en years; that Heaney had been in the habit of .visiting the race track, but stopped.going there about the latter part of June, 1900. / He also'testified that he had never seen'the witness-Buh .until the !day before the trial. Buh had testified'that he saw a clerk at Heaney’s place when he called for payment, and Whelen testified that there ' was no such person as described by Buh in the decedent’s employ ' át that time. The witness knew Steimer and testified that he .remembered -his calling at Heaney’s place of business after his death, and that Steimer offered him $500 or $1,000 to go to one of ' the executors of Heaney’s' will and tell him that he knew that Heaney borrowed this money from the plaintiff.
This is substantially all tile testimony. At the close of the defendants’ case the plaintiff moved for the direction of a verdict -for the amount claimed to have been loaned, with interest thereon, and the defendants asked that the case be submitted to the jury. The court granted the plaintiff^ motion and directed a verdict, and from the judgment entered thereon this appeal is taken.
It is the policy of the law to require that claims made against the estates of deceased persons. be established by very-satisfactory testimony. (Van Slooten v. Wheeler, 140 N. Y. 624.), The rule that a fact testified to by a disinterested witness udio is not discredited, and where such evidence^oes not conflict with other evidence offered upon the trial, is to be taken as legally established,' has no application to claims which are sought to be recovered against the estates of deceased persons. (Hughes v. Davenport, 1 App.
It follows that the judgment and order should be reversed and a new trial granted, with costs to the appellants to abide the,event.
Van Brunt, B. J., Patterson, O’Brien and Laughlin, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellants to abide event.