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Smith v. Davis

56 N.Y.S. 183 Court N.Y. App. Term Decision date 1899-02-24 English

Delivered by LEVENTRITT, J..

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p. 183
SMITH v. DAVIS et al.
(Supreme Court, Appellate Term.
February 24, 1899.)

Headnote

Appeal—Review—Conflicting Evidence.
The judgment of the trial court on a question of fact, as to which there was conflicting evidence, will not be disturbed on appeal, where the evidence fails to show that partiality or prejudice has affected the decision, or that injustice has otherwise been done.
Appeal from municipal court, borough of Manhattan, First district.
Action by William M. Smith against Herman Davis and another. From a judgment for defendants, plaintiff appeals.
Affirmed.
Argued before FREEDMAN, P. J., and MacLEAN and LEVEN-TRITT, JJ.
Smith Tuttle, for appellant.
Maurice M. G-reenstein, for respondents.

To recover the unpaid balance of the purchase price of goods sold and delivered the plaintiff brought this action. He contended that the defendants had effected purchases of shoes from one William B. Dibble to the amount of $100.40, and, having paid on account thereof only $70, there remained owing a balance of $30.40, which demand was duly assigned to him. The defendants resisted recovery upon the plea that they had fully paid for all the goods which they had purchased, and that the $30.40 claimed represented certain shoes which they had never bought, and which they returned shortly after receipt. Upon the trial, the sole issue litigated was whether the rejected goods were or were not ordered by the defendants, and the trial justice, accepting the version of the disputed transaction as detailed by the defendants, rendered a verdict in their favor.

The evidence fully justifies that conclusion. There is no question of law involved in this appeal. The appellant invokes a review of the determination of the justice upon a matter of fact, as to which there was conflicting evidence, and in the decision of which he seeks the substitution of the judgment of the appellate tribunal for that of the trial justice, without any indication in the evidence that partiality, bias, or prejudice induced or affected the conclusion, or that otherwise

p. 184
injustice has been done. It has been repeatedly held that under such circumstances the judgment of the court below will not be disturbed. It is to be regretted that so many hopeless appeals are prosecuted, and appellants consequently subjected to unnecessary expense, oftentimes exceeding the amount in controversy. The perusal of any one of a long series of authorities which could be cited should discourage the prosecution of appeals purely upon questions of fact, which must necessarily eventuate in affirmance. Pelletreau v. Power Co., 13 Misc. Rep. 237 , 34 N. Y. Supp. 125 ; Patterson Gas Governor Co. v. Lichtenstein Bros. Co., 9 Misc. Rep. 126 , 29 N. Y. Supp. 279 ; Goodman v. Riccadonna, 13 Misc. Rep. 66 , 34 N. Y. Supp. 169 ; Mitchell, Vance & Co. v. Daiker (Com. Pl.) 19 N. Y. Supp. 378 ; Lynch v. Kluber, 20 Misc. Rep. 601 , 46 N. Y. Supp. 428 ; Lowenthal v. Copland, 18 Misc. Rep. 6 , 41 N. Y. Supp. 8 ; Foster v. Meeks, 18 Misc. Rep. 463 , 41 N. Y. Supp. 950 .

The judgment must be affirmed, with costs. All concur.

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