Fowler v. Marcus — 58 N.Y.S. 867

Majority

p. 867

FOWLER v. MARCUS.

(Supreme Court, Appellate Division, Second Department.

June 20, 1899.)

Headnote

Appeal—Review—Conflict of Evidence.

A judgment of the municipal court on conflicting evidence cannot be reversed on appeal.

Appeal from municipal court of New York.

Action by Bernard Fowler against Marks H. Marcus. There was a judgment for plaintiff, and defendant appeals.

Affirmed.

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

Moore, Bleeker & Wheeler, for appellant.

G. Storms Carpenter, for respondent.

The plaintiff sues to recover the rent of a flat from March 15th to May 1st, at $45 per month. Three questions were raised at the trial and on this appeal: First, whether the lease terminated on May 1st, or whether it was a lease by the month; second, whether there had been a surrender and acceptance of the premises; third, whether there was a re-entry upon the premises during the term. As to the first question, the following appears on the appellant’s brief:

“The evidence on this point is flatly contradictory. The plaintiff swears positively that the renting was up to May 1st; the defendant, just as positively, that it was from month to month.”

A little attention to repeated decisions of appellate courts in this state would have informed the appellant that this court has no power to reverse the judgment of a justice of the peace (and the same rule applies to the municipal court) where there is contradictory evidence upon the facts involved. These authorities are so numerous as not to require citation.

The second and third questions also depend, although not so clearly, upon conflicting evidence, but there was sufficient evidence to justify the finding in favor of the plaintiff.

The judgment was properly rendered, and should be affirmed.

Judgment of the municipal court affirmed, with costs. All concur.