Miller v. Smith

2 Citing cases

  1. In re Wil-Low Cafeterias

    22 F. Supp. 522 (S.D.N.Y. 1937)   Cited 1 times

    The word "full" refers to a liquidation of the amount owed, not to an extinguishment of the debt; it is not the equivalent of "absolute." The New York courts have held that, where a contractor on finishing his work accepts an owner's notes for the amount due, giving a receipt in full for the claim, the debt on the building contract is not discharged and the right to file a lien not destroyed. Althause v. Warren, 2 E.D.Smith 657. See, also, Tiley v. Thousand Island Hotel Co., 9 Hun., N.Y., 424; Miller v. Smith, 20 App. Div. 507, 47 N.Y.S. 49. In Meyer v. Lathrop, 73 N.Y. 315, cited by the debtor, the receipt given by the creditor was much stronger.

  2. Matter of Laurence v. Gaffney

    272 App. Div. 609 (N.Y. App. Div. 1947)   Cited 2 times

    In any event, if the drawing of the first inference establishing a dishonest purpose be regarded as unwarranted, there would be still less basis for the drawing of the second inference. Although the trier of the facts was not required to believe the testimony of petitioner and his wife, since they were interested witnesses, still nothing is clearer than the rule stated in Moore on Facts (Vol. 1, ยง 131) citing Miller v. Smith ( 20 App. Div. 507, 510-511) and Williams v. Van Norden Trust Co. ( 104 App. Div. 251, 256) that although the trier of facts is not bound by the testimony of a witness because he is an interested party, there is no justification for not only refusing to believe the witness, but without further evidence, finding the exact contrary from his testimony. While there can be no question of the evidentiary rule as to an interested witness, still there is a recognized exception, which is, that the rejection is unwarranted where the testimony is uncontradicted, as here, by any direct evidence, or by any legitimate inferences from other evidence, and it is not improbable, nor in its nature surprising nor suspicious ( Hull v. Littauer, 162 N.Y. 569). The testimony of this couple, I believe, falls within the foregoing exception.