(dissenting):
There is no conflict of evidence, in this case, on the subject of the assignment of the claim of Jones to the plaintiff.
The only way to discredit the testimony relating to it, is to reject it upon the presumption that it is false, to assume that the statement made by the witness is untrue. The courts have not gone so far as to allow this tó be done. In the case in 45 New York, referred to by Justice DaNiels, there was evidence presumptive in character against the defendants, and the question was, whether the positive evidence given in their behalf overcame the presumption or prima facie evidence against them. That case did not present the question whether the jury could disregard evidence wholly uncontradicted.
In Lomer v. Meeker (25 N. Y., 363), Smith, J., said: “ The positive testimony of an unimpeached, uncontradicted witness, cannot be disregarded by court or jury arbitrarily or capriciously; ” and in the case in 45 New York, Justice Rapallo states the rule to be, that such testimony should be credited and have the effect of overcoming a mere presumption. In this case there was nothing to overcome; no presumption except such as might be created by the evidence itself.
There was nothing to gainsay it. It will also be perceived on a careful perusal of'Judge Rapallo’s opinion, that his deductions are based not on intrinsic, inherent improbability or falsity in the statement alone, but rest upon the presence of facts and circumstances disclosed by other evidence which create presumptions in conflict with, or contradictory of positive evidence given, and thus two elements, not one only, are considered. The circumstances disclosed by Sheridan in reference to the assignment may have been suspicious, but many transactions which bear such an impress have been honest and so declared by courts of jnstice. When the assignor, Jones, was put upon the stand he was not interrogated by the *431defendants’ counsel in relation to the assignment; no questions were asked him on the subject.
This left the statements of the other witnesses uncontradieted and the jury could not arbitrarily reject their testimony.
There was no pretense of fraud against the claim itself and nothing to warrant the conclusion that the plaintiff had sworn falsely. I think a new trial should be granted.
Judgment and order affirmed.