Opinion
December Term, 1896.
Order affirmed with costs. —
The plaintiff, to maintain the complaint, was sworn as a witness and was permitted to give testimony tending to support the allegations of the complaint. In the course of the charge, delivered by the learned trial judge, he stated that the plaintiff was not entitled to recover in the action unless the jury believed the testimony given by the plaintiff in his own behalf as a witness. The jury seems to have disbelieved the testimony of the plaintiff, as their verdict is adverse to him. Plaintiff was a party to the action, interested in the result, and his testimony was contradicted to some extent by the witnesses Whitney, Bulger and Allport; and, under the circumstances disclosed in the appeal book, we are of the opinion that the instruction given by the learned trial judge was correct. ( Elwood v. W.U. Tel. Co., 45 N.Y. 549.) We have looked at the exceptions taken during the progress of the trial, and are of the opinion that they do not present any reversible error. The order should be affirmed, with costs. All concurred.