Silber v. Sire — 36 N.Y.S. 472

Majority

p. 472

SILBER v. SIRE.

(Common Pleas of New York City and County,

General Term.

December 23, 1895.)

Headnote

Appeal—Review—Conflicting Evidence.'

Where the evidence is conflicting and confused, the decision of the trial court will not be disturbed on appeal.

Appeal from Eighth district court.

Action by Leonard J. Silber against Benjamin Sire. From á judgment rendered in favor of plaintiff, defendant appeals.

Affirmed.

Argued before BOOKSTAVER and BISCHOFF, JJ.

Albert I. Sire, for appellant.

Julius Silverman, for respondent.

Action for damages for the conversion of a safe. Plaintiff bought a safe from Sire & Reisfeld, which was standing in a store at the northeast corner of Thirty-Ninth street and Sixth avenue. This firm occupied the store down to April 1, 1895. When they moved out they left the safe there, and plaintiff claims they afterwards sold it to him. A Mr. Stein was in charge of the empty store, and refused to let the safe go, saying that Mr. Sire so directed him. The defendant denied that he owned the store or the building, or that he had authorized any one to withhold a safe there from the plaintiff, and testified that a Mr. Fountain owned the building. He would not say, however, that he had not brought a suit against Sire and his partner for the rent. His memory on this important point is very obscure. Stein testified that a man named Hazlett, agent for Fountain, had brought a suit against Sire & Reisfeld, presumably for the rent of the store. Hazlett’s office was with Sire, and Sire’s employés were accustomed to obey him. The testimony is very conflicting and confused. This confusion could have been cleared by the production of witnesses within reach. There was, however, evidence sufficient to support the finding of the justice, who had all the parties before him, and could best determine where the truth lay.

The judgment will therefore be affirmed, with costs.