Brian v. Mead — 15 N.Y.S. 488

Majority

p. 488

Brian v. Mead.

(Supreme Court, General Term, Second Department.

July 2, 1891.)

Headnote

Appeal—Review—Wetoht op Evidence.

The decision of the trial court on a question as to which the conflicting evidence of the parties and their witnesses was evenly balanced will not be disturbed on appeal.

Appeal from special term, Westchester comity.

Action by Oscar G. Brian against Solomon Mead. From a judgment for plaintiff, defendant appeals.

Argued before Barnard, P. J., and Pratt, J.

Charles Haines, for appellant. Abram J. Miller, for respondent.

The appeal in this case presents only a question of fact. The proof shows that the parties made an agreement by which the defendant sold to the plaintiff all the wood standing within certain described boundaries. The district was marked off by blazed or marked lines, but when the contract was put in writing a portion of the district was. left out of the same. The parties differ as to the facts. The plaintiff testifies that the defendant was “satisfied witli the marks as we had made them.” The plaintiff’s view of the fact was supported by the testimony of Mr. Adams. The defendant denies that there was any omission of the description, and he is supported in his view by the witnesses Johnson and Lockwood. There is no case for an appellate court to interfere. The decision of the trial judge must be deemed to be final upon a question so evenly balanced as to the witnesses, and where there is nothing in the testimony to call for a reversal. Judgment affirmed, with costs.