Travis v. Gallon — 23 N.Y.S. 194

Majority

p. 194

TRAVIS v. GALLON.

(Supreme Court, General Term, Second Department.

May 8, 1893.)

Headnote

Review on Appeal.

Where the evidence is conflicting the verdict will not be disturbed on appeal, unless it is plainly against the preponderance of evidence.

Appeal from Westchester county court.

Action by Vernon Travis against Edward L. Gallon to recover for work, labor, and services. From a judgment for plaintiff entered on a verdict, and from an order denying a motion for a new trial, defendant appeals.

Affirmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.

Wilkinson & Cossum, (Chas. F. Cossum, of counsel,) for appellant.

Francis Larkin, for respondent.

This action was tried first in a court of a justice of the peace, where the plaintiff obtained a verdict. Then on appeal to the county court of Westchester county there was another trial, and the plaintiff again obtained the verdict. The action was for services rendered by the plaintiff to the defendant, and the chief controversy upon the trial arose over the question of payments made to the plaintiff. That was an affirmative defense, and, although we would have been better satisfied with a verdict for the defendant, yet we cannot say that the payments were so fully established as to justify us in reversing the judgment. There was a sharp contradiction of the testimony of the defendant, and the jury must have disregarded it to a very great extent. We can see no reason for such unbelief, but we cannot say there was none. We reach this conclusion with hesitation, but we cannot say the verdict is so plainly against the preponderance of evidence as to justify an appellate court in interfering therewith. The judgment and order denying the motion for a new trial should be affirmed, with costs. All concur.