Fowler v. Marcus — 41 A.D. 425

Majority

p. 425

Bernard Fowler, Respondent, v. Marks H. Marcus, Appellant.

Headnote

Judgment of the New York Municipal Court — when not renewable on the facts.

The Appellate Division has no power to reverse, upon the facts, a judgment of the Municipal Court of the city of New York, rendered upon conflicting evidence.

Appeal by the defendant, Marks H. Marcus, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said, court on the 13th day of March, 1899, upon the decision of the court rendered áfter a trial before the court without a jury.

Moore, Bleecker & Wheeler, for the appellant.

G. Storms Carpenter, for the respondent.

The plaintiff sues to recover the rent of a flat 'from March fifteenth to May first at forty-five dollars per month. Three questions were raised at the trial and on this appeal: First, whether the lease terminated on May first or whether it was a lease by the month; second, whether there had been a surrender and acceptance of the premises; third, whether there was a re-entry upon the premises during the term. As to the first question, the following appears on the appellant’s brief: “ The evidence on this point is flatly contradictory. The plaintiff swears positively that the renting was up to May 1st, the defendant just as positively that it was from month to month.”

A little attention to repeated decisions of appellate courts in this State would have informed the appellant that this court has no power to reverse the judgment of a justice of the peace (and the same rule applies to the Municipal Court) where there is contradictory evidence upon the facts involved. These authorities are so numerous as not to require citation.

The second and third questions also depend, although not so clearly, upon conflicting evidence, but there was sufficient evidence to justify the finding in favor of the plaintiff.

The judgment was properly rendered and should be affirmed.

All concurred.

Judgment of the Municipal Court affirmed, with costs.