#### HAMILTON v. FORSYTH.

(Supreme Court, General Term, Third Department.

May 8, 1894.)

Witness—Testimony op Party—Credibility.

Where defendant calls plaintiff as a witness, the rule that the credibility of the testimony of a party, though uncontradicted, is a question for the jury, does not apply.

Appeal from Ulster county court.

Action by George Hamilton against John Forsyth for wages. From a judgment of the county court reversing the judgment of a justice of the peace, plaintiff appeals. Reversed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

*1017Eckert & Westbrook (John D. Eckert, of counsel), for appellant.

Charles F. Cantine, for respondent.

PUTNAM, J.

The respondent claims that the judgment of the justice was properly reversed by the county court on account of the alleged error of the justice in excluding the check for $4.50, dated March 26, 1891, offered in evidence by the defendant on the trial; that, if said check had been received, it would have shown a payment of $4.50 by defendant to plaintiff on March 26,1891; and, a cash payment of $25 in the same month being admitted, such payments would have tended to show that plaintiff’s claim that he commenced work for the defendant on March 9,1891, was untrue, as in that case no sum would have become due to plaintiff until April 9,1891. But the only evidence in the case in regard to the said check was that introduced by defendant. He proved by plaintiff, whom he (defendant) made his witness in that regard, that the check in question was given for three days’ work done prior to March 9, 1891. The defendant was afterwards sworn, and did not contradict plaintiff’s testimony, but rather corroborated it. Hence, the defendant proved that the check in question was for work done prior to the alleged hiring; and, such being the case, it was properly excluded by the justice. Had the defendant, in the first instance, proved the check in question by another witness than the plaintiff, and the latter, as a witness on his own account, had testified that said check was given for work done prior to March 9, 1891, doubtless the defendant would have had the right to go to the jury as to the credibility of plaintiff’s testimony, even if such statement of the plaintiff had not been denied on the trial. But defendant chose to malee the plaintiff his own witness in regard to the check, and proved by him what the check was given for, and that it was not material to the issues formed by the pleadings; and, his evidence not being contradicted, the justice was authorized to sustain plaintiff’s objection to the introduction of the paper. But, were it otherwise, it may be doubted whether the error of the justice, if any error there was, in excluding the paper in question, was one that in any manner harmed the defendant. The facts that the check would have shown, if introduced, seem to have been proved by the evidence in the case. The plaintiff testified: “This check was given to me for days’ work done before March 9, 1891, for Mr. Forsyth; for three days’ work, at $1.50 per day.” Defendant testified: “This check of March 26,1891, is for three days’ work, at $1.50 per day.” The above-quoted testimony was not stricken out, but remained in the case, and showed that on March 26,1891, defendant gave to plaintiff a check for three days’ work, at $1.50 per day. The check, if introduced, would have shown no more. The judgment of the county court should be reversed, with costs. All concur.