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Klenke v. Standard Oil Co.

54 N.Y.S. 124 Court N.Y. App. Term Decision date 1898-11-10 English

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p. 124
KLENKE v. STANDARD OIL CO. OF NEW YORK.
(Supreme Court, Appellate Term.
November 10, 1898.)

Headnote

1. Appeal—Review—Question op Fact.
A decision of the trial court on a question of fact will not be disturbed when there was sufficient evidence, if believed, to justify it.
■3. Same—Credibility op Witnesses.
A decision of the trial judge, involving the question of the credibility of witnesses, will seldom be disturbed.
Appeal from municipal court, borough of Manhattan, Second district.
Action by Herbert G. Klenke against the Standard Oil Company of New York. Judgment was for plaintiff, and defendant appeals.
Affirmed.
Argued before BEEKMAN, P. J., and GILDERSLEEVE and GIEGERICH, JJ.
John Brooks Leavitt, for appellant.
G. F. Shepard, for respondent.

After a careful examination of the record in this case, we are of the opinion that there was sufficient evidence upon all the questions in issue, if credited, to sustain a judgment in favor ■of the plaintiff. It has been repeatedly held in this court and in the

p. 125
court of common pleas with respect to such appeals as this that the appellate court will not disturb the findings of fact of the trial justice, except under conditions which are not disclosed by the record here. Morgan v. Enright, 22 Misc. Rep. 737 , 49 N. Y. Supp. 1106 ; Conroy v. Allen, 23 Misc. Rep. 125 , 50 N. Y. Supp. 610 .

The rule laid down in that regard has special application here, inasmuch as the credibility of the witnesses was the determinative factor in ascertaining the facts of the case. It is peculiarly the function of the trial justice to pass upon this question, and, for the reasons stated in the authorities, it is seldom practicable for the appellate court to review his decision upon it. Conroy v. Allen, supra; Felbel v. Kahn, 29 App. Div. 270 , 51 N. Y. Supp. 435 . The facts having been found in favor of the plaintiff, they were sufficient, as matter of law, to support a judgment in his favor.

Judgment affirmed, with costs. All concur.

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