¶1The only possible theory upon which the verdict of the court below can be sustained is that both the agent and the janitress were interested witnesses; but, assuming —not conceding—such to be the fact, their testimony, being uncontradicted and unimpeached, could not he disregarded. In the case of Lomer v. Meeker, 25 N. Y. 361, the action was upon a promissory note; and the payee thereof testified to the defense of usury, which was set up by the answer. The witness was not impeached or contradicted, and the defendants moved that the complaint be dismissed on the ground that the proof showed that the note had been discounted at an usurious rate. This motion was denied, and the defendants excepted. The case was then submitted to the jury, who found a verdict in favor of the plaintiff. The judgment, thereon having been affirmed at general term, the defendants appealed to the court of appeals, where the judgment was reversed. Smith, J., who spoke for the court, said:
“The positive testimony of an unimpeached, uncontradicted witness cannot be disregarded by court or jury arbitrarily or capriciously. They are bound to believe, for judicial purposes, such testimony; and it would, in an instance like this, be the clear duty of the court to set aside the verdict of a jury, founded on a disbelief of clear, uncontradicted, and undisputed evidence.”
¶2This ruling was followed in Kelly v. Burroughs, 102 N. Y. 93, 6 N. E. 109, where it was held that a verdict may be directed where the only testimony to sustain it is that of the person requesting the verdict, if the same is uncontradicted, and there exists no circumstance from which an inference, against the fact so established can be drawn. The doctrine of- this case has also been followed in Dwight v. Insurance Co., 103 N. Y. 341, 8 N. E. 654, and Plyer v. Insurance Co., 121 N. Y. 689, 24 N. E. 929. From a consideration of the cases cited, and other kindred ones, they seem to me to establish the rule that the positive testimony of a witness, though interested in the result of the litigation, cannot be disregarded, if the same is uncontradicted, and if there exists no circumstance from which an inference against the fact testified to by him can be drawn. There were no facts or circumstances proved on the trial which bring the case at bar within this exception. I therefore concur in the reasoning and conclusion as expressed in the learned opinion of Judge BOOKSTAVER.