Lewis v. Hosey — 56 N.Y.S. 200

Majority

p. 200

LEWIS et al. v. HOSEY.

(Supreme Court, Appellate Term.

February 24, 1899.)

Headnote

1. Appeal—Review—Conflicting Evidence.

The judgment of the trial court on a question of fact will not be disturbed on appeal where the evidence was conflicting.

2. Costs.

A respondent is not entitled to costs, on affirmance of the judgment, where he did not appear.

Appeal from municipal court, borough of Manhattan, Eighth district.

Action by Nathan Lewis and another against Cornelius Hosey. From a judgment for defendant, plaintiffs appeal.

Affirmed.

Argued before FREEDMAN, P. J., and MacLEAN and LEVEN-TRITT, JJ.

Nathan Lewis, in pro. per.

This is an action brought by the plaintiffs to recover the sum of $18, claimed by them to be due for rent of certain premises for the month of April, 1898. The whole question involved seems to be a question of fact, upon which both parties gave testimony directly in conflict; the plaintiffs claiming that the payment of rent should date from the 1st of each month, and the defendant claiming that the payment of rent was to date from the 6th or 7th of each month. It is undisputed that the defendant took possession of the premises on the 6th or 7th day of January, 1898, paying therefor the sum of $9, according to the agreement that one-half month’s rent should only be charged for the first month. On the 7th day of February he paid $18, the monthly rental, and again on the 6th day of March. He vacated the premises on the 7th of April. These facts, coupled with the testimony as to the contents of the receipts (which testimony was inadmissible, if it had been properly objected to), created such a conflict of testimony that the judgment of the trial court should not be disturbed. As the respondent failed to appear, no costs should be awarded.

Judgment affirmed, without costs. All concur.