Majority
p. 381MESSER v. HATKOFF. (Supreme Court, Appellate Term. October 16, 1900.) • Argued before BEEKMAH, P. J., and GIEGERICH and O’GOR MAH, JJ.
Headnote
1. Appeal—Verdict—Evidence.A judgment based on conflicting evidence on a trial by the court will not be disturbed on appeal, unless against the weight of the evidence.
2. Same—Review—Judgment—Reduction—Affirmance.
Where no proof was given on the trial of a cause as to an item which was included in the judgment, such inclusion having doubtless been through inadvertence, the judgment would be modified by deducting such item, and otherwise affirmed.
Appeal from municipal court of city of Hew York.
Action by William Messer against Hathan Hatkoff. From a judgment in favor of plaintiff, defendant appeals.
Modified.
P. Hellinger, for appellant.
J. Gruenberg, for respondent.
The trial justice decided this case upon conflicting evidence. It was peculiarly his province so to do, and unless against the weight of evidence, which, after an examination of the proofs, we cannot assert, the judgment must be affirmed.
Our attention is called, however, to an item of the recovery amounting to $1.50, as to which no proof whatsoever was given, and which,
p. 382
doubtless through inadvertence, was included by the trial justice in the judgment.
The judgment will therefore be modified by deducting therefrom the item in question, and as so modified affirmed, with costs to the respondent.