(dissenting). This is the second trial of this action. Both of the trial justices who saw and heard and observed the plaintiff testify as a witness in his own behalf have ruled adversely to his claim. The judgment in defendants' favor on the first trial was reversed by this court only because of errors relating to the admission or exclusion of evidence. (Irwin v. Foley, 259 App. Div. 156.) We did not hold that the verdict was against the weight of the credible evidence.
*139The justice who tried the case the second time, in my opinion, properly reached the conclusion that the uncorroborated testimony of this plaintiff, the sole witness in his own behalf and a most interested witness, was “ too improbable to be worthy of credence.” A reading of the record on appeal enforces the conviction that the trial court was entirely justified in granting judgment in defendants’ favor on the basis of plaintiff’s direct and cross-examination, even though defendants rested on plaintiff’s case. On this trial there were no errors in the admission or exclusion of testimony.
Here, as on the prior trial, the plaintiff, on his own testimony, asked the court to believe that, although he had been receiving $150 a week salary as an engineer for five years prior to the time he was elected financial secretary of the union in 1932, he continued to work in that capacity until 1936 and permitted himself to be re-elected from year to year, although he only received tiny fragments of the wage he claims he was fully entitled to receive and constantly demanded, until there were unpaid balances of over $11,000 due. He swore that he made constant requests and was given constant assurances by the entire membership of 600 men who had worked with him for years, many of whom were his trusted friends. Not one of them was called to corroborate his extraordinary story.
He served from June, 1932, until he was removed in February, 1936, and by that time the local owed him, as he claims, $11,000. Nevertheless, he did not serve a complaint in this action until August 12, 1937, eighteen months after his removal.
The testimony is filled with inconsistencies, contradictions and reckless statements. In spite of the claimed monthly protests for five years there is not a single letter or any other document in writing evincing a protest of any kind to anybody. From 1932 to February, 1936, he says: “ I wrote to nobody as to the question of my wages.”
The witness was ambiguous, evasive and argumentative. Even in the printed record, it is clear he is not the type of witness one would be inclined to believe. The inferences of improbability which flow from his story are overwhelming.
After two trials in which both trial justices have ruled adversely to plaintiff on the basis of bis credibility, I think the judgment in defendants’ favor should be affirmed.
Accordingly, I dissent and vote to affirm.
Judgment reversed, with costs, and judgment directed in favor of the plaintiff for the amount demanded in the complaint, with costs. Settle order on notice.