Donnelly v. Vanbeuren — 61 N.Y.S. 57

Majority

p. 57

DONNELLY v. VANBEUREN et al.

(Supreme Court, Appellate Term.

November 29, 1899.)

Headnote

Appeal—Review—Conflicting Evidence.

Where the testimony is conflicting, the judgment'will not be disturbed.

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

Action by John Donnelly against Alfred Vanbeuren and Samuel Pratt. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

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

Mayer & Gilbert, for appellants.

Michael J. Horan, for respondent.

Upon an oral complaint stated as “action for rent of billboards,” to which the defendants’ answer was, “General denial, -demand bill,” the plaintiff’s attorney, Mr. Horan, testified that, the defendants having used the roof of the plaintiff’s blacksmith shop for billboards during several prior years, he, in December, 1898, called at the office of the defendants, who were partners, and saw Mr. Pratt, who said he would renew the “lease” for the ensuing—that is, the current—year at the same terms as the last, which were for $250, payable semiannually. This action was brought for $125, the amount of the “rental” for the first six months. The plaintiff, as his own witness, corroborated the statements of Mr. Horan as to prior years. The defense practically rested upon contradictions given by Mr. Pratt of Mr. Horan’s testimony, so that the whole contention turned upon the relative credibility of the two principal witnesses, of whom the trial justice credited the plaintiff’s attorney. Thé judgment should not be disturbed.

Judgment affirmed, with costs. All concur.