Rosenthal v. Cohen — 69 N.Y.S. 893

Majority

p. 893

ROSENTHAL v. COHEN.

(Supreme Court, Appellate Term.

April 16, 1901.)

Headnote

Appeal—Find in gs—Conclusi v eness.

A finding of fact on conflicting evidence will not be reviewed.

Appeal from municipal court, city of Hew York, Seventh district.

Action by Max Rosenthal against Henry Cohen. From a judgment for plaintiff, defendant appeals.

Affirmed.

Argued before BISCHOFF, P. J., and CLARKE and LEVEH-TRITT, JJ.

Phillips & Rippe, for appellant.

Arthur Furber, for respondent.

The plaintiff’s testimony shows the making of the lease, and, while the defendant contradicted him, the preponderance of the evidence was readily to be found with the plaintiff if the justice, after observing the demeanor of the two opposing witnesses, was impressed with the better credibility of that party. The check produced by the defendant to support his claim of payment was •drawn in an amount which does not correspond with the rent thus asserted to have been paid, and the probabilities are certainly not against the plaintiff’s testimony that this check was in payment of an indebtedness upon other transactions which admittedly took place between the parties. The finding of the justice upon this simple ■conflict of fact presents nothing for this court to review.

Judgment affirmed, with costs. All concur.