Samuel Fordham, Respondent, v. William Smith, Appellant

Samuel Fordham, Respondent, v. William Smith, Appellant. A party must be held to have believed each witness called by him credible, and to have so presented him to the court. A referee has a right to find a witness mistaken; and if there is a contradiction between him and another, to decide the question of fact contrary to his statement. But he cannot judicially deem an uncontradicted witness, testifying against the party calling him, false and peq'ured, and so holding to infer the truth of the matter to he the reverse of what was testified. (Argued June 21st, 1871; decided September 5th, 1871.) Action for the alleged unlawful conversion of a promissory-note made by defendant and delivered to plaintiff. The referee found that the note came again unlawfully into the possession of defendant, and was by him in collusion with the payee destroyed. Plaintiff called defendant as a witness, who testified that he knew nothing of the note, had not got it, and never had seen it since he gave it to the payee, and did not know what had become of it. There was no direct testimony to the contrary. The referee ’ found for plaintiff. Judgment thereon affirmed by General Term. J\ H. Bergen, for appellant. W. J. Osburn, for respondent. [MAJORITY — Folger, J.,] Folger, J., reads opinion for reversal and new trial. Oh. J. Allen, Rapallo, and Andrews, JJ., concur. Judgment reversed.