Randall v. Randall — 26 N.Y.S. 407

Majority

p. 407

RANDALL v. RANDALL.

(Supreme Court, General Term, Third Department.

December 6, 1893.)

Headnote

Appeal—Review—Weight op Evidence.

Where the questions in a case tried by the court are all of fact, and the evidence is conflicting, the findings will not be disturbed on appeal.

p. 408

Appeal from special term, Clinton county.

Action by William C. Randall against Frank Randall for dissolution of partnership and settlement of the partnership accounts. From a judgment dissolving the partnership, and in favor of plaintiff for $149, without costs, plaintiff appeals.. In case defendant consents to an increase of $28.44 in the amount of the judgment, to correct error in calculation, judgment will be affirmed as corrected; otherwise, it will be reversed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

William P. Cantwell, for appellant.

Beckwith, Barnard & Wheeler, (G. H. Beckwith, of counsel,) for respondent.

We are unable to say that the trial judge did not properly exercise the discretion vested in him in regard to costs. The questions in the case were of fact. The evidence was conflicting, and under well-settled principles the findings of the court below, rendered on such conflicting evidence, cannot be disturbed. The judge, however, seems to have made a slight mistake in Ms calculation as to two items. In the twelfth finding, page 17, he holds that plaintiff expended in April, 1880, $35, in March, 1880, $25, and upon one other occasion $25. It will be seen that in his calculation at page 11 the last above item is omitted, and that the April, 1880, is put at $25, instead of $35, making in all an error of $35. The judgment should have been larger, therefore, by one-half of that amount and interest, in all amounting to $28.44. If defendant shall stipulate, within 10 days after the service of a copy of the order herein, that the judgment be increased $28.44 as of the date of the entry thereof, judgment shall be so modified, and, as so modified, affirmed, without costs to either party. If defendant fails to so stipulate, judgment reversed, and a new trial granted; costs to abide the event.