O'Sullivan v. Devlin — 63 N.Y.S. 475

Majority

p. 475

O’SULLIVAN v. DEVLIN.

(Supreme Court, Appellate Term.

March 5, 1900.)

Headnote

.Appeal — Finding op Fact — Review.

A finding on conflicting evidence will not be disturbed.

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

Action by Thomas J. O’Sullivan against Michael Devlin. From a judgment in favor of plaintiff, defendant appeals.

Affirmed

Argued before TRUAX, P. J., and DUGRO and SCOTT, JJ.

J. I. Green, for appellant.

M. H. Murphy, for respondent.

The complaint alleges that between the 25th and' 28th days of October, 1894, both dates inclusive, the plaintiff herein, at the special instance and request of the defendant, sold and delivered to the defendant certain goods, wares, and merchandise, and performed certain work and labor, and rendered certain services," which were reasonably worth, and for which the defendant promised to pay, the sum of $121.50. This allegation was denied by the-defendant. There was no evidence to show that defendant employed plaintiff, except such as is to be found in the cross-examinatian of the plaintiff himself. On his cross-examination he was asked whether the defendant employed him between the 25th of October and the 28th of October to furnish goods, wares, and merchandise, and perform certain services, and he answered that he did, on the 28th. If he was employed by the defendant on the 28th to render-the services that the evidence shows he did render, the defendant should pay. It is true that such employment was denied by the-defendant, but this presented an issue of fact to be determined by the trial justice, and with his determination we will not interfere.

Judgment affirmed, with costs.