#### CUNNINGHAM v. GANS.

(Supreme Court, General Term, First Department

July 13, 1894.)

New Trial—Verdict against Evidence.

A verdict founded on a disbelief of clear and undisputed evidence will be set aside.

Appeal from circuit court, New York county.

Action by Michael J. Cunningham against Adolf Gans. From an order granting a new trial on the merits, plaintiff appeals.

Affirmed.

Argued before VAN" BRUNT, P. J., and PARKER and BARRETT, JJ.

Ira Leo Bamberger, for appellant.

Arthur Furber, for respondent.

BARRETT, J.

This is an appeal from an order granting a new trial upon the minutes of the judge at circuit. The action was upon a check, and the defendant set up that the check was given for money lost at a game of chance called “Roulette.” Upon the trial this defense was established by a disinterested witness named Stahl, who fully confirmed the defendant with regard to the transaction. There were some slight discrepancies between Stahl and the defendant in matters of detail, but none with regard to the material fact. The plaintiff failed to produce the payee of the check, one Vanderburgh, nor did he offer any evidence in contradiction of that given by Stahl and the defendant. Vanderburgh was the person who presided over the game in Mitchell’s Club House at Saratoga, rolled the ball, sold the chips which were lost, and took the check therefor. Upon this state of facts there was nothing to go to the jury, and the learned judge should have directed a verdict for the defendant.

At the close of the case the defendant’s counsel asked the court to charge the jury as follows: “That the uncontradicted evidence of the case is that the consideration for the giving of the check is illegal, to wit, a gambling debt, and therefore their verdict must be for the defendant.” This motion was denied, and the defendant excepted. This was error. As the defendant was entitled to an absolute direction, he was certainly entitled to this instruction. The check was a thing in action, executed and given by the defendant in consideration of money won from him at a game of chance; and it was therefore “utterly void” under the statute (1 Rev. St. p. 663, *980§ 16). There was no real dispute about the facts. Whatever question there might have been as to the right to go to the jury upon the defendant’s testimony, had it stood alone, there was none when his testimony was supplemented by that of an unimpeached and uncontradicted witness. The positive testimony of an unimpeached and uncontradicted witness cannot be disregarded by court or jury arbitrarily or capriciously. Lomer v. Meeker, 25 N. Y. 363; Kelly v. Burroughs, 102 N. Y. 93, 6 N. E. 109. In the present case both -court and jury were, as was said in Lomer v. Meeker, supra, “bound to believe, for judicial purposes, such testimony,” and it was therefore the clear duty of the court to set aside the verdict of a jury founded upon a disbelief of clear, uncontradicted, and undisputed evidence. Page 363. The motion for a new trial was therefore properly granted. It was granted unconditionally. This also was proper, as the defendant was entitled to a new trial, not as a matter of discretion, but as a matter of right. ■ The order appealed from should therefore be affirmed, with costs. All concur.