Hyperlawhypertext legal database Clark v. Livingstone 8 N.Y.S. 102

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Clark v. Livingstone

8 N.Y.S. 102 Court N.Y.C.P. Decision date 1889-12-30 English

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p. 102
Clark v. Livingstone.
(Common Pleas of New York City and County, General Term.
December 30, 1889.)

Headnote

Appeal—Rb view—Weight of Evidence.
Where the evidence is conflicting, yet plaintiff’s testimony is consistent with itself, and is not overcome by defendant’s proofs, the judgment will not be reversed.
Appeal from seventh district court.
Action brought by Hobart F. Clark against Edward Livingstone. Judgment was rendered for plaintiff, and defendant appeals.
Argued before Van Hoesen and Bookstaver, JJ.
Evarts, Choate & Beaman, for appellant. Moore & Wallace, for respondent.

The only question raised on the appeal in this action is one of fact; and that is whether the contract to lay the pavement was absolute, or conditioned upon the plaintiff’s obtaining a similar contract from adjacent property holders. On this question there is a conflict of evidence; and while, to us, the weight seems to be in favor of defendant, yet plaintiff’s testimony is not inconsistent with itself, or-so overborne by the defendant’s as to permit us to reverse the judgment. It will therefore be affirmed, with costs.