PER CURIAM.
The record does not disclose whether the trial court accepted or rejected defendant's testimony. If it accepted the testimony, then as matter of law the court erred in its decision. If the court rejected it, error was also done for the testimony was not contradicted or impeached in any respect. It was positive and direct, not incredible on its face and was corroborated. It was, therefore, the duty of the court to give credit to it. ( Hull v. Littauer, 162 N.Y. 569; Lomer v. Meeker, 25 id. 361; Powers v. Wilson, 203 App. Div. 232.)
The motion for reargument is denied, with ten dollars costs, and the motion for leave to appeal to the Court of Appeals is denied.
PER CURIAM.
Motion for reargument denied, with ten dollars costs. Motion for leave to appeal to the Court of Appeals denied.