Majority
p. 237LEVENE et al. v. LASCAROPULOS et al. (Supreme Court, Appellate Term. April 27, 1898.) .Argued before BEEKMAN, P. J., and GILDERSLEEVE and GIEGERÍOH, JJ.
Headnote
Appeal—Review—Question op Fact.Where the sole question involved in an appeal to the appellate term of the supreme court is one of fact, that court will not interfere with the determination of the trial justice, unless his decision is so palpably against the weight of evidence that it would be a denial of justice to allow it to stand.
Appeal from Second district court.
Action by Joseph Levene and Harry Levene against Laskar Lascaropnlos and George Weinberg. From a judgment in favor of defendants, plaintiffs appeal.
Reversed as to Weinberg.
Abraham B. Schleimer, for appellants.
The sole question involved in this appeal is one of fact, and it is well settled that this court, in such a case, will not interfere with the determination of the trial justice, unless his decision is so palpably against the weight of evidence that it would be a denial of justice to allow it to stand. Whether or
p. 238
not the appellant was a bona fide holder of the note in question-depended upon the credibility of witnesses, which it was peculiarly within the province of the justice below to determine. In doing so> he had'the advantage, which we do not possess, of observing the manner in which their testimony was given, and their demeanor-on the witness stand. We are therefore not inclined to disturb the judgment in favor of the defendant Lascaropulos, the maker of the note in suit, dismissing the complaint as to him. It is different, however, with the defendant Weinberg, the indorser, who interposed no defense to the action, but seems, when examined as a witness, to have admitted his liability on the note.
The judgment is therefore reversed as to the defendant Weinberg, and a new trial ordered, with costs to the appellant to abide-the event, and affirmed as to the defendant Lascaropulos, with costs. All concur.