O'DONNELL v. CASPARY

O’DONNELL v. CASPARY. (Supreme Court, Appellate Term. December 16, 1908.) 1. Judgment (§ 19)—Evidence to Sustain. Plaintiff, in an action for doing laundry work for defendant, testified that, while in the employ of defendant’s mother, defendant asked her to do this extra work at a stipulated price. There was no other witness called in the case, and the court gave judgment for defendant. Held that, as plaintiff’s testimony was uncontradicted and not opposed to the probabilities, and not surprising or suspicious, the judgment was unwarranted, and should be reversed. [Ed. Note.—For other cases, see Judgment, Dec. Dig. § 19.*] 2. Appeal and Ereor (§ 671*)—Question fob Review—Limitation by Record. Matters outside the record cannot be considered on appeal. [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 2867; Dec. Dig. § 671.*] Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by Annie O’Donnell against Howard Caspary. Judgment for defendant, and plaintiff appeals. Reversed. Argued before GIFGFRICH, HENDRICK, and FORD, JJ. G .W.-Hopkins, for appellant. J. B. A. Mullaly, for respondent. For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes [MAJORITY — FORD, J.] FORD, J. Plaintiff brings this action for doing laundry work for defendant. She says that, while in the employ of defendant’s mother as cook, defendant asked her to do this extra work at a stipulated price. SEe was the only witness. Before defendant made any motion, and without hearing the defense, the court gave judgment for defendant. The plaintiff’s testimony was uncontradicted, is not opposed to the probabilities, and is not in its nature surprising or suspicious. Second Nat. Bank v. Weston, 172 N. Y. 250, 64 N. E. 949; Siegmeister et al. v. Lispenard Realty Co. (Sup.) 107 N. Y. Supp. 158; Hull v. Littauer, 162 N. Y. 569, 57 N. E. 102; Littlefield v. Lawrence, 83 App. Div. 327, 82 N. Y. Supp. 25; Kappes v. N. Y. City Ry. Co., 50 Misc. Rep. 534, 99 N. Y. Supp. 322; Lewis v. N. Y. City Ry. Co., 50 Misc. Rep. 535, 99 N. Y. Supp. 462; Johnson v. Doll, 11 Misc. Rep. 345, 348, 32 N. Y. Supp. 132; Bolster v. N. Y. City Ry. (Sup.) 113 N. Y. Supp. 770. The respondent appeals to matters outside the record, but they cannot be considered here. The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.