Hespe v. Wyman — 37 N.Y.S. 652

Majority

p. 652

(16 Misc. Rep. 63.)

HESPE et al. v. WYMAN.

(Supreme Court, Appellate Term, First Department.

February 26, 1896.)

Headnote

Appeal—Weight op Evidence.

A judgment on conflicting evidence will not be disturbed on appeal as against the weight of evidence.

Appeal from Second district court.

Action by William C. Hespe and another against Edward B. Wyman. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Argued before McADAM and BISCHOFF, JJ.

George L. Hoffman, for appellant.

Patrick J. O’Beirne, for respondents.

This action was brought to recover for work, labor, and services and materials furnished at the defendant’s instance and request, and a recovery of $72.50 was had. There can be no question as to the value of the services in suit, since the defendant himself admitted in court that their value was in the amount above stated; but the appeal is based upon the claim that the defendant, in making the contract for the work, acted as agent for a corporation, and that the weight of the evidence is in his favor upon this defense. A consideration of the record makes it apparent, however, that there was merely a conflict of evidence touching this point, and the probabilities are not against the plaintiffs’ positive evidence that the defendant acted as an individual, pledging his own credit, in the course of the transaction. It may be, as contended, that the plaintiffs had reason to be cognizant of the claim that the defendant was acting as agent; but this was subsequent to the contract and performance, if at all, and the plaintiffs were not restricted to an action against the concealed principal, when finally discovered. The question of the weight of evidence must be resolved impartially by the appellate court, and cannot be determined merely as a reflection of the appellant’s reliance upon the value of his allegations and proofs.

Judgment affirmed, with costs.