Cohen v. Holtzer — 64 N.Y.S. 462

Majority

p. 462

COHEN v. HOLTZER.

(Supreme Court, Appellate Term.

May 1, 1900.)

Headnote

1. Appeal—Error without Prejudice.

In an action for commissions for goods sold, errors in the admission and rejection of evidence touching the aggregate amount of sales made are not ground for reversal where the testimony of defendant fixes the amount of sales made higher than that claimed by plaintiff.

2. Same—Conflict of Evidence.

A judgment on conflicting evidence will not be disturbed on appeal.

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

Action by Isaac Cohen against Max Holtzer to recover commissions for the sale of goods for defendant. From a judgment for plaintiff, defendant appeals.

Affirmed.

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

• Ignaee Irving Apfel, for appellant.

Max Altmayer, for respondent.

This action, tried upon written pleadings, is for commissions claimed by plaintiff for selling goods manufactured by defendant. That the plaintiff was employed and made certain sales is admitted by the answer, which puts in issue the amount of the sales and the rate of commissions agreed to be paid. Our attention is directed to numerous errors made by the justice in the admission and rejection of evidence touching the aggregate amount of the sales, and, if these errors affected the result, we should feel obliged to reverse the judgment. The defendant, however, himself testified to the aggregate sales made by plaintiff, fixing the amount at a figure slightly larger than that claimed by the plaintiff himself. The only question left, therefore, was as to the agreed rate of commission. Upon this point the evidence was conflicting, and we do not feel called upon to "disturb the conclusion at which the justice arrived.

The judgment should be affirmed, with costs.