Dugoff v. Zeman

This action was brought to recover for money deposited by the plaintiff as security while in the employ of the defendants. The case has been tried twice. Upon the first trial, judgment was rendered for the plaintiff, but on appeal it was reversed, because it did not appear in the evidence that the defendants were residents of the borough of Manhattan. Upon the second trial the case was decided in favor of the defendants.

Upon the first trial, the plaintiff produced a written receipt for *764fifty dollars, signed by the defendants, and testified that the deposit had never been repaid to him. The defendants testified that while the plaintiff was in their employ he was requested to make an affidavit upon which they could institute criminal proceedings against another employee of theirs; that the plaintiff refused to make this affidavit unless he was repaid his fifty dollars; that the money was thereupon repaid to him in the identical bills which he had deposited, and which had been kept in a safe; that soon after the money was repaid the plaintiff was asked about the receipt and said that he had mislaid it. On the second trial, the plaintiff and his attorney testified in substance that the receipt which had been produced upon the first trial had been lost or mislaid, and could not be produced in court again, and the plaintiff also testified that the deposit had never been repaid to him.

On this trial the defendants, as upon the former trial, testified as to the refusal of the plaintiff to make the affidavit in question, unless his deposit was repaid to him, and repeated their testimony given on the first trial that the identical bills which the plaintiff had deposited were returned to him. They also testified that at the time of such payment, the receipt which had been given to him was returned to them, which latter statement conflicted with the testimony given on the first trial. Notwithstanding this discrepancy in the evidence the court below rendered' judgment in favor of the defendants, and, as I cannot see that the decision was against the weight of evidence, the judgment should be affirmed, with costs.

O’Gorman and Blanchard, JJ., concur.

Judgment affirmed, with costs.