Holstein v. Clark — 36 N.Y.S. 419

Majority

p. 419

(15 Misc. Rep. 239.)

HOLSTEIN v. CLARK.

(Superior Court of Buffalo,

General Term.

December 23, 1895.)

Headnote

Appeal—Review of Evidence.

A finding as to fraud on conflicting evidence will not be disturbed on appeal.

Appeal from municipal court.

Action by Christopher H. Holstein against William H. Clark. From a judgment for defendant, plaintiff appeals.

Affirmed.

Argued before TITUS, C. J., and HATCH and WHITE, JJ.

Alfred B. Osgoodby, for appellant.

Wood & Gibbons, for respondent.

This action was brought in the municipal court for fraud in the purchase of a bill of groceries from the plaintiff by the defendant. The purchase of the groceries is admitted, but the fraud is denied. Upon that question the court below found in favor of the defendant. While there is evidence which would have justified a finding of this question against the defendant, we think that the court, having all of the witnesses before it, could determine from their appearance upon the stand, and the general character of their conduct and manner of testifying, which were the more entitled to be believed; and the finding upon this question should not be disturbed, in the absence of such a preponderance of evidence as would lead us, as a matter of law, to reverse the judgment. That condition does not exist in this case, and we think the judgment of the court below should be affirmed, with costs. All concur.