Katz v. Friedman

117 N.Y.S. 108

Opinion

PER CURIAM.

Plaintiff was appointed receiver of premises January 5, 1909, and brought this action to recover the January rent from defendant, a tenant. The testimony betrays a series of discreditable real estate transactions relating to the title, in which, however, the defendant, a long-time occupant had no part. He swore that he paid his rent for January to the then record owner before the plaintiff was appointed. He was corroborated by other oral testimony, though he produced no receipt. The court gave judgment for the plaintiff, evidently upon the theory that the defendant and his witnesses testified falsely. This theory cannot be upheld, unless it appears that the testimony on its face is so improbable as to be manifestly incredible. While there is much to criticise as to some of the witnesses, no ade-' quate reason is given for entirely disregarding the prima facie defense of payment.

The judgment should be reversed, and a new trial granted, without costs.

LEHMAN, J., concurs in result only.