Martin B. Brown Co. v. Yardum — 51 N.Y.S. 364

Majority

p. 364

MARTIN B. BROWN CO. v. YARDUM.

(Supreme Court, Appellate Term.

May 3, 1898.)

Headnote

Work and Labor—Action por Price.

In an action to recover for services and materials in printing certain books for defendant, at his request, in which the defendant claimed that they were imperfectly cut and bound, it appeared that, after discovering such alleged defects, he nevertheless retained the books. Held, that he was bound by his-acceptance, and was not entitled to any deduction from the price.

Appeal from First district court.

Action by the Martin B. Brown Company against Armen Yardum. Judgment for plaintiff. Defendant appeals.

Affirmed.

Argued before BEEKMAN, P. J., and GILDERSLEEVE and GIEGERICH, JJ..

Theodore A. Swan, for appellant.

Elek J. Ludvigh, for respondent.

The only questions involved upon this appeal arise from the determination of facts upon the trial of this cause, and "these were: (1) That the work was done for one D. M. Bedikian, and not the defendant; (2) that the work was defective, and not worth the sum charged. The justice determined, as we assume from the judgment, that the 2,000 copies of the Armenian-English Manual or Dictionary, for the printing of which and the materials furnished therefor this action was brought, were rendered and furnished at the request of the defendant. Although we might have arrived at a different conclusion, yet 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 see no reason for disturbing such determination, in the

p. 365

absence of the elements which are requisite to a review of the facts. The justice had the witnesses before him, observed their manner of testifying, and therefore was undoubtedly better able to judge of their credibility and of the weight to be given to their testimony than is this appellate court. The defendant claims that the books were imperfectly cut and bound, but, having retained them after discovering such alleged defects, he is bound by his acceptance thereof, and hence is not entitled to any deduction from the price. Moreover, there was a conflict of evidence upon the question as to the cause of such imperfections, which the justice resolved in favor of the plaintiff. For these reasons the judgment should be affirmed, with costs.