Ellis v. Seaman — 50 N.Y.S. 685

Majority

p. 685

ELLIS v. SEAMAN.

(Supreme Court, Appellate Term.

March 28, 1898.)

Headnote

Appeal—Review.

Where the determination below is not plainly against the weight of the evidence, the judgment will not he reversed.

Appeal from district court.

Action by Charles E. Ellis against Frank Seaman. Judgment for plaintiff, and defendant appeals. Affirmed.

p. 686

Argued before BEEKMAN, P. J., and GILDEBSLEEYE and GIEGERICH; JJ.

Percival S. Jones, for appellant.

Daniel S. Decker, for respondent,

There is no question of fraud or warranty in the-case. The only issue raised by the pleadings and exceptions is with respect to the terms of the contract, and its performance. What the agreement was, is evidenced by the written order which was given for the advertisements in question. It contained all of the elements' of a complete contract, and, under familiar principles, cannot be enlarged or varied by parol evidence. The only matter which remains-to be considered is whether there was a substantial performance, with respect to the quality of the work. This was a question of fact, which it was peculiarly within the province of the court below to determine, and we cannot say that such determination was so plainly against the weight of evidence as to justify us in reversing the judgment.

Judgment affirmed, with costs.