Miller v. Margulies — 104 N.Y.S. 673

Majority

p. 673

MILLER v. MARGULIES et al.

(Supreme Court, Appellate Term.

May 29, 1907.)

Headnote

Apfeax^-Findings of Fact-Findings of Court on Conflicting Evidence.

Where there Is a conflict in the testimony In a case which presents simply a question of fact, and there is no inherent improbability in the contention of the prevailing party, the findings of the trial judge 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, Eighth District.

Action by Isaac B. Miller against Samuel Margulies and another. From a judgment for plaintiff, defendants appeal.

Affirmed.

Argued before GILDERSLEEVE, P. J., and SEABURY and BRADY, JJ.

Samuel S. Kogan, for appellants.

Moss & Feiner for respondent.

This case presents simply a question of fact. The plaintiff testified that he was to be paid as the work progressed, and the trial justice, who had an opportunity of observing the witnesses when they gave their testimony, disbelieved the testimony of the defendants and believed the testimony of the plaintiff. There is no inherent improbability in the plaintiff’s contention, and I can see no good reason why the opinion of the justices of this court should be substituted for that of the trial justice, when the issue presented is one of fact. The plaintiff actually did the work on the premises, which was shown to be at least of the value of $150; and I agree with the trial justice that he ought to be paid.

Judgment affirmed, with costs. All concur.