Goldsmith v. Coverly. * rectly, during the year 1889? A. I can't remember that; the bookkeeper knows that; he can tell you. Q. I thought you said he was dead. A. Well; I know, but he knew it at the time. * * Q. You can't seriously mean that you don't remember whether there was one book or six books which covered the enormous shipments which you, the biggest shipper in New York, made? A. I can't remember. Q. Did you ever see, yourself, any page or any book which recorded or purported to record any of your transactions in cattle during the year 1889? A. No. Q. Do you know anybody that ever did, except the bookkeeper whom you saw buried? A. No; I bought a house about two years ago, and I kept my books up at the house, and then we moved out, and the books didn't come down, and the books were destroyed; they didn't come to the office, because we didn't have any safe. We bought a new safe down here. He (the bookkeeper) always kept those books in his power. I myself am no bookkeeper. Two years ago I bought a house and the books were left. there, and we bought a safe down here, and they commenced with new books. Q. He claimed your books as his own property? A. Yes. Q. And you didn't make any objection to his claiming your books as his own property? A. No, I always thought he was a straightforward man." The defendant, evidently with the idea that plaintiff's bank account and checks would furnish evidence of payments to other lines for the shipment of cattle, inquired of him in what banks he kept his accounts for the year 1889. With what success the following questions and answers which fairly measure it will disclose: "Q. Did you keep more than one bank account during the year 1889? A. I can't remember; I kept one; I can't tell you; we have got two bank accounts; I don't know where we generally put the money in; I can't remember exactly. I didn't draw checks, I only signed them. Q. Can you tell this jury the name of any bank in which you Goldsmith v. Coverly. kept an account and upon which you were in the habit of drawing checks or signing checks during the year 1889?· A. I can't remember them all. Q. Can you remember the name of any bank in which you ever kept an account? A. I kept an account in the Chemical Bank. Q. Was it not in the Chemical Bank that you kept an account during the year 1889? A. I can't remember that." It was, at least, quite remarkable that the plaintiff, who was the largest shipper of live cattle from the port of New York, and who during the year 1889 shipped between 60,000 and 70,000 head of cattle from that port to Liverpool, London, Glasgow and Hull, should, within a short time thereafter, permit the books showing all these transactions to be lost or destroyed under the circumstances testified to by him. The care which he says he took of them was not such as would ordinarily be expected of a reasonably prudent man engaged in business of such magnitude. Clearly, the jury should have been permitted to say, in view of the character of his answers to defendant's inquiries on crossexamination, of which we have given specimens merely, whether they believed his testimony in such respect. And if the conclusion should have been reached that his testimony in that regard was untrue, they would have been at liberty to disregard the rest of his evidence. In addition, the defendants produced two witnesses, who were shipping agents of other lines, who testified that in the year 1889 they had seen plaintiff's foreman, Mr. Hirsch, on several occasions superintending the loading of cattle on boats belonging to their lines. In view of the general rule which obtains when the testimony of a party is wholly uncorroborated, coupled with the improbability of many of the plaintiff's statements, the defendants were clearly entitled to have the jury pass upon his credibility. It was for them to say, after weighing the entire testimony in the light of the witness's interest in the result, whether they believed that Note on Testimony of an Interested Witness. he had met the burden resting upon him of establishing. full performance of the contract on his part. The judgment should be reversed, with costs to the appellant to abide the event. VAN BRUNT, P. J., concurred. FOLLETT, J.-The circumstances disclosed by the record made the credibility of the plaintiff a question for the jury, and the court erred in directing a verdict; but I am not prepared to hold that the credibility of a party must, in all cases, be submitted to the jury. In case the testimony of a party is wholly uncontradicted, is not improbable on its face, and there is no circumstance which tends to discredit the credibility of a party or the testimony given, the court may direct a verdict based on such testimony (Lomer v. Meeker, 25 N. Y. 361; Kelly v. Bur'roughs, 102 Id. 93). I do not understand that the Court of Appeals has laid down as a general rule that in all cases the credibility of a party or of a witness interested in the event of the action must be submitted to the jury, but in the particular cases considered it was held that the credibility of the party or of the interested witness should have been submitted to the jury. Judgment reversed, with costs to the appellant to abide the event. NOTE ON THE VALUE OF THE TESTIMONY OF AN INTERESTED WITNESS. This case and the one following manifest very clearly the diversity of judicial opinion,-which has existed ever since the disqualification of interest was removed,-in respect to the value of the testimony of an interested wit The great importance of the question results from the fact that frequently the question on the trial of a cause whether it is to be decided by the judge or by the jury must depend on the view that is taken of this point. This element of importance does not exist in the second Note on Testimony of an Interested Witness. of the cases in the text, viz: the Matter of Farian, because there the referee and the surrogate and the General Term on Appeal sat clothed with the functions of both judge and jury, but the decision turns on the same principle. In a proper consideration of this question we should not overlook the fundamental principle that a substantial question of credibility, whether created by a direct conflict in testimony, or by the fact that the sole testimony on an essential point is that of a witness who has been impeached, makes a question for the jury. The point to be considered is whether the testimony of a party or of an interested witness, where it is the only evidence on an essential point, ought always to be submitted to the jury and not made' the basis of a binding direction of a verdict. In considering this point it should be observed that under settled practice which allows an action to be brought in his own name by the trustee of an express trust (including a person who makes a contract for the benefit of another), the party in many cases may have no real interest and the beneficiary as a witness may have all the interest which a party suing for his own benefit could have. This important fact has been already made the ground of a substantial change in the rulings under § 829 of the Code, it now being held that the words of that section "a party or person interested in the event" do not include a party to the record who has no interest in the event. Another point to be observed is the question whether interest in the event for the purpose of determining the value of the testimony of a witness should be considered as including only a legal interest therein (i. e., such a relation to the cause that the witness may gain a legal right or come under a legal liability by a judgment in the cause, or may use the judgment as evidence in future litigation), or whether it should include witnesses having bias merely, a kind of interest which doubtless occasionally amounts to a motive quite as strong as a legal interest, but which is so common in weaker and very slight degrees. For the previous authorities on this subject, 28 Abb. N. C, 211, and addenda. Matter of Farian's Accounting. MATTER OF FARIAN'S ACCOUNTING. N. Y. Supreme Court, General Term; First Department, April, 1894. 1. Gift; requisite cogency of evidence.] While there is no presumption of law or fact against a gift, neither is there in favor of one and he who claims by an alleged gift must establish it by evidence which is clear and convincing, strong and satisfactory. 2. The same.] A sick man gave to a friend a package saying, “If I should die, all the money in bank belongs to you;" afterward the package was opened and found to contain six savings bank books. The donee was appointed administrator, and after consulting an attorney he included in the inventory made by him these deposits, but on his accounting he claimed that they were given to him.-Held, that the testimony of the donee's wife to the circumstances of the alleged gift was not alone sufficient to sustain a finding in his favor. Appeal from a surrogate's decree in the accounting of S. Farian as administrator. Frederick W. Holls, for appellants. Alfred Steckler, for respondent. FOLLETT, J.-Charles Wiegel died intestate at the city of New York on Wednesday, March 11, 1891, and April 16, 1891, respondent, claiming to be a creditor, was appointed administrator of his estate by the surrogate's court of the city and county of New York. This controversy arises over the title to $8,536.29 on deposit to the credit of the intestate at the date of his death in six savings banks. The respondent asserts that Wiegel gave him these moneys on Sunday, March 8, 1891, during his last sickness and in apprehension of death, while the appellants, intestate's next of kin, who are resident citizens of Ger |