Boyd v. Fumonte — 24 N.Y.S. 702

Majority

p. 702

(4 Misc. Rep. 604.)

BOYD et al. v. FUMONTE.

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

August 9, 1893.)

Headnote

Appeal—Review—Conflicting Evidence.

A judgment rendered on conflicting evidence will not be disturbed on appeal on questions of fact.

Appeal from second district court.

Action by Francis O. Boyd and another against Louis A. Fumonte. From ,a judgment for plaintiffs, defendant appeals.

Affirmed.

Argued before BISCHOFF and GIEGKERICH, JJ.

Harris Wilson, for appellant.

John F. Foley, for respondents. ■

The action was' brought to recover for wines sold and delivered by plaintiffs ' to defendant. Upon the trial, plaintiffs’ salesman testified that he was ignorant of any copartnership existing between defendant and Coari, and that the wines were sold to ■ defendant upon the latter’s credit. Defendant testified that he and Coari were partners, and that plaintiffs’ salesman was so informed at the time of the sale. ¡Next plaintiffs introduced evidence to show that Coari’s check was accepted in payment conditionally only, to wit, that it was to be credited in payment if paid on presentation. This also defendant attempted to refute. It was conceded that the check was not paid. Upon the conflict of evidence the court below decided in favor of plaintiffs for the agreed purchase price, as it was quite competent for it to do. Defendant has therefore not sustained the burden of showing error, and the judgment appealed from must be affirmed, with costs.