Hyperlawhypertext legal database De Lipman v. D. Appleton & Co. 55 N.Y.S. 614

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De Lipman v. D. Appleton & Co.

55 N.Y.S. 614 Court N.Y. App. Term Decision date 1899-01-23 English

Delivered by GIEGERICH, J.

Contents

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p. 614
DE LIPMAN v. D. APPLETON & CO.
(Supreme Court, Appellate Term.
January 23, 1899.)

Headnote

Appeal—Beview—Conflicting Evidence.
A verdict on conclusions of a justice of the municipal court on conflicting evidence will not be disturbed.
Appeal from municipal court, borough of Manhattan, First district.
Action by Max De Lipman against D. Appleton & Co. From a judg-
ment for plaintiff, defendant appeals.
Affirmed.
Argued before BEEKMAN, P. J., and GLLDERSLEEVE and GIE GERIGH, JJ.
J. Hampden Dougherty, for appellant.
Theron Davis, for respondent.

This action was brought to recover the sum of $60, as the value of three drawings, which plaintiff claims were made by him at the instance of the defendant. It is claimed by the defendant that one of the pictures sought to be recovered for, and entitled “A Night Scene in Printing-House Square,” was not included in the order given to plaintiff; and that the other two, to wit, “Wall Street at Night,” and “Business Men at Luncheon at Astor House,” were not executed in conformity with the agreement entered into respecting them. Such a conflict of testimony seems to have arisen upon the trial as to render unjustifiable any interference on the part of this court with the conclusions of the justice. Sufficient evidence was undoubtedly adduced to authorize the trial justice in his findings that the first-mentioned picture was ordered as claimed by the plaintiff, and executed by him in conformity with such direction, and he was likewise justified in fixing its reasonable value. With respect to the artistic value, as well as their peculiar adaptability to the purposes for which they were de

p. 615
signed, there is a divergency of opinion regarding the other two pictures; but as the trial justice was in a better situation than we to pass upon the credibility of witnesses, having seen them and observed their manner while upon the witness stand, we fail to find any reason for disturbing his determination.

Reversal of the judgment being sought solely upon the facts, and an examination of the record satisfying us that it is amply sustained by the evidence, we conclude that the judgment must be affirmed, with costs. All concur.