Reports of Cases Heard and Determined in the Appellate Division of the Supreme Court of the State of New York Volume 83

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1903 Excerpt: ...defendant or any witness in 1191' behalf. If the defendant had rested her case without denying the facts testified to by the witnesses called by the plaintiff or introducing any evidence to controvert their testimony, the court would have been justified in accepting the testimony of the plaiutifi's witnesses as true and in granting the divorce. I deem it quite clear that, for the purpose of the motion to dismiss, which, being made at the close of the plaintiffs case, was in reality a motion for a nonsllit, the plaintifi was entitled to have the evidence presented in his behalf weighed and determined precisely the same as if the defendant had rested her case without offering any evidence. Th9 2l'011I1d upon which the rule that vhere the plaintiff is nonsuited in 5 jury Case he is entitled to have the evidence viewed in the m0Bli favorable light is extended to cases triable by the court, is, I W-ke it, that notwithstanding the fact that in such ease the credibility of witnesses is for the court, this credibility must be determined 011 the Whole ""59, either in the light of this testimony not being denied Yvhelh if untme, it might have been, or in the light of corroborating evidence. If these views are sound, it follows that the judgment should be reversed and a new trial granted, but without costs. Judgment afiirined, with costs, App. Div. FIRsT DEPARTMENT, MAY TERM, 1903. In the Matter of the Appraisal; under the Act in Relation to Taxable Transfers of Property, of the Property of WILLIAM MEYER, Deceased. SOLOMON Lona, as Sole Surviving Trustee under the Will of WIL LIAM MEYER, Deceased, and Others, Appellants: TnE'CoMr-TROLLER or THE STATE OF NEW Yonx, Respondent. William Meyer died in 1887, leaving a last will and testament whi...