Beament v. Furniss — 110 N.Y.S. 202

Majority

p. 202

BEAMENT v. FURNISS.

(Supreme Court, Appellate Term.

May 15, 1908.)

Headnote

Appeal—Verdict on Conflicting Evidence.

In an action against defendant for board and lodging furnished his wife, -the testimony being conflicting as to whether she left him wrongfully, upon which plaintiff’s right to recover depended, a verdict for plaintiff will not be disturbed. • '

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appéal and Error, §§ 3935-3937.]

Appeal from • Municipal Court, Borough of Manhattan, Third District.

Action by Maria Beament against William P. Furniss. From a judgment for plaintiff, defendant appeals.

Affirmed.

Argued before GILDERSLEEVE, P. L, and GIEGERICH and GREENBAUM, JJ.

Will H. Crow, for' appellant.

Abram Lipfeld, for respondent.

The action is to recover the sum of $130.50, a part of which is for cash loaned to the defendant’s wife and the. rest for board and lodging furnished to her. The defendant and'his wife during the period covered by the transactions in suit were living apart; she having left him some time previously. Upon the trial it was conceded that the board and lodging and the moneys loaned were all to be deemed necessaries; the only question to the court being whether the defendant would be liable for them as necessaries. Judgment for the full amount in favor of the plaintiff was rendered by the justice after hearing the testimony. In the brief submitted by the appellant’s counsel it is conceded that the only question on this appeal is one of- fact—whether the defendant’s wife left him- wrong

p. 203

fully or not. Upon this issue there was a sharp conflict of testimony, her word against his, and there is no reason why her testimony should not be accepted as establishing the plaintiff’s case.

. The judgment is affirmed, with costs. All concur.