Williams v. Wheeler — 57 N.Y.S. 857

Majority

p. 857

WILLIAMS v. WHEELER.

(Supreme Court, Appellate Division, Second Department.

May 2, 1899.)

Headnote

Justice of the Peace—Finding of Fact—Conclusivenf.ss.

The rule that the supreme court cannot reverse the judgment of a justice of the peace on a disputed question of fact does not apply where defendant swears positively to a payment, and plaintiff only states that he cannot swear whether defendant paid him or not The dispute must be real and substantial to have the rule apply.

Appeal from Suffolk county court.

p. 858

Action by Jacob V. Williams against Wesley J. Wheeler. From a judgment of the Suffolk county court affirming a judgment of a justice of the peace, defendant appeals.

Modified.

Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.

Elliot J. Smith, for appellant.

George W. Weeks, Jr., for respondent.

While it is true that neither the county court nor this court can reverse the judgment of a justice of the peace on a disputed question of fact, the dispute must be real and substantial to have this rule apply. The defendant swore positively to the payment of $10 on account of his debt on December 10, 1896. The only response plaintiff would make to this was that he could not swear whether the defendant did pay him that sum or not. We regard this denial as illusory and unsubstantial. The defendant should have been allowed this credit.

The judgment of the county court and of the justice of the peace should be modified by reducing the judgment of the justice to the sum of $4.59, and, as reduced, affirmed, without costs of this appeal, either in the county court or in this court, to either' party as against the other.