J. C. Bogert Co. v. Schmidt — 101 N.Y.S. 580

Majority

p. 580

J. C. BOGERT CO. v. SCHMIDT.

(Supreme Court, Appellate Term.

December 11, 1906.)

Headnote

Appeal—Review—Conclusiveness oe Finding.

Where there was a sharp conflict of proof, the finding of the Trial Court will not be disturbed on appeal.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3983-3989.]

Appeal from Municipal' Court, Borough of Manhattan, Hirst District.

p. 581

Action by the J. C. Bogert Company against Charles Schmidt. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Argued before GILDERSLEEVE, FITZGERALD, and DAVIS, JJ.

Cornelius Doremus (Joseph H. Lecour, of counsel), for appellant.

W. S. & A. S. Katzenstein, for respondent.

The action is for the breach of two contracts for the purchase of flour. The defense is that plaintiff failed to deliver the flour purchased according to contract. The justice found for defendant. Plaintiff appeals.

The sole ground of the appeal is that the judgment is against the weight of evidence. The flour was to be delivered by installments. It is conceded that defendant paid for all that was delivered. The defendant refused to accept further deliveries on the ground that the plaintiff failed to comply with the conditions of the contracts with respect to deliveries. The issue presented was as to defendant’s claim that he was justified in so refusing to accept the deliveries. The defendant testified that plaintiff did not deliver 100 barrels a month, as agreed upon, and that he was obliged to buy other flour elsewhere. There is a sharp conflict of proof, but. as the justice found for the defendant the Appellate Court is reluctant to disturb his conclusion,'although under the evidence he might well have found for the plaintiff.

The judgment must be affirmed, with costs.