Dunne v. Young — 16 N.Y.S. 957

Majority

p. 957

Dunne, Respondent, v. Young, Appellant.

(Common Pleas of New York City and County, Additional General Term.

January 4, 1892.)

Headnote

Appeal from eleventh district court.

Action by John W. Dunne against Annie Young upon a written contract.

Argued before Bookstayer and Bischoff, JJ.

C. & A. Kenneson, for appellant. F. Higley, for respondent.

This action was brought upon a written contract, and of course the burden of showing the fulfillment of it according to its terms was upon the plaintiff. The defense relied upon was that the plaintiff neglected the business, was incompetent to do the work which he undertook to do, and that it became necessary for the defendant to hire another man to do part of his work. It is true that the plaintiff contradicts this testimony upon these points, but this makes it a question of conflict of evidence merely; and, as there is enough to sustain the finding of the court below upon these questions, we think the judgment should be affirmed, with costs.