Howe v. Schweinberg , 21 N.Y.S. 469 ( 1892 )

Ehrlich, Ch. J.

The plaintiffs declared upon and proved a special contract, by which the intestate, prior to his death, agreed to pay the plaintiffs a specified sum of money, as a fee, if they succeeded in accomplishing certain results, which they ultimately brought about, after the expenditure of time and labor.

The plaintiffs received part of the fee, and the trial judge directed a verdict in favor of the plaintiffs for the balance.

The evidence of Moss, the plaintiffs’ clerk, as to the contract, relied upon, is full, positive, clear and uncontradicted, and the witness stood unimpeached.

Within the rule, therefore, that where an unimpeaehed witness gives testimony uncontradicted either by other witnesses or by circumstances, and, moreover, natural, plausible and probable, such testimony is conclusive, must be accepted by the court, and need not be submitted to the jury. Kelly v. Burroughs, 102 N. Y. 95; Lomer v. Meeker, 25 id. 361; Reizer v. Germania Ins. Co., 121 id. 692.

There is no merit in the exceptions and no error requiring a new trial.

It follows that the judgment must be affirmed, with costs.

Newburger, J., concurs.