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Snow, Church & Co. v. Schlesinger

35 N.Y.S. 122 Court N.Y.C.P. Decision date 1895-08-22 English

Delivered by GIEGERICH, J.

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p. 122
SNOW, CHURCH & CO. v. SCHLESINGER.
(Common Pleas of New York City and County, General Term.
August 22, 1895.)

Headnote

Appeal—Review of Evidence.
The decision of a justice of the district court on the facts will not be disturbed unless the evidence is so convincing as to clearly indicate that there was a mistake on his part, that he was influenced by bias, passion, prejudice," or corruption, or that he neglected to deliberate on the whole testimony presented. Lynes v. Hickey (Com. PI. N. Y.) 24 N. Y. Supp. 731 , followed.
Appeal from First district court.
Action by Snow, Church & Co. against Alfred Schlesinger. From a judgment for defendant, plaintiff appeals. Affirmed.
Argued before BISCHOFF and GIEGERICH, JJ.
Henry K. Davis, for appellant.
Arnold C. Weil, for respondent.

This action was upon a contract to recover $30, the subscription fee for one year to the plaintiff’s collection agency. Judgment was rendered for the defendant. The printed instrument signed by the defendant, which was put in evidence, was not claimed to be the entire contract between the parties. Parol evidence of oral representations and promises, made by the soliciting agent at the time the contract of subscription was obtained, was admitted without objection. Neither was the authority of that agent to make the representations and promises disputed. On the contrary, the plaintiff’s manager himself testified that, when informed by the defendant of them, he had said in response that it was “unusual” for the agent to make such an agreement. We think, from a careful reading of the evidence, that there was ground for the decision the trial justice reached, either in the view that the defendant had rescinded the contract upon the plaintiff’s failure to perform certain parts of the agreement, or the view that the subscription was conditional upon the defendant’s finding the services afforded by the plaintiff satisfactory after a trial from on or about the 23d" day of October, 1894, to the 1st day of January, 1895, and that he had informed the plaintiff of his dissatisfaction. In either case only a question of fact was presented, and we find in the record no suffi

p. 123
cient ground for disturbing the decision of the justice, the elements which are required to review such determination being absent. Lynes v. Hickey, 4 Misc. Rep. 522 , 24 N. Y. Supp. 731 ; Weiss v. Strauss (Com. Pl.) 14 N. Y. Supp. 776 . For these reasons the judgment should be affirmed, with costs.

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