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Burkhard v. George Hagemeyer & Sons Lumber Co.

50 N.Y.S. 667 Court N.Y. App. Term Decision date 1898-03-28 English

Delivered by GIEGERICH, J.

Contents

Majority

p. 667
(23 Misc. Rep. 167.)
BURKHARD v. GEORGE HAGEMEYER & SONS LUMBER CO.
(Supreme Court, Appellate Term.
March 28, 1898.)

Headnote

Appeal—Review.
The appellate term of the supreme court will not disturb the conclusion of the trial justice, in a case tried without a jury, in which there was sufficient evidence to support a finding either way.
Appeal from Eleventh district court.
p. 668
Action by Jacob Burkhard against George Hagemeyer & Sons Lumber Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
Argued before BEEKHAN, P. J., and GILDERSLEEVE and GIEGERICH, JJ.
W. C. Beecher and Richard B. Kelly, for appellant.
Lewis S. Goebel, for respondent.

This action was brought to recover the sum of $172.50, claimed to be due plaintiff for horses, harness, and drivers furnished to the defendant, at its request,' during the month of April, 1897. The issues in the action were joined by written complaint and answer, the latter containing a general denial. The substantial question of fact litigated upon the trial was whether or not the horses were furnished to the defendant; the plaintiff claiming that they were, while the defendant denies having hired or used them, insisting that the same were furnished to one August K. Kaufold upon his request. There was sufficient evidence in the case to support a finding either way; and, the justice having found for the plaintiff upon a conflict of evidence, we should not disturb his conclusion. Lynes v. Hickey, 4 Misc. Rep. 422 , 24 N. Y. Supp. 731 . We have examined with great care the exceptions taken at the trial to rulings respecting the admissibility of evidence, and fail to discover the existence of any substantial error which would require the reversal of the judgment.

The judgment should therefore be affirmed, with costs. All concur.

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