Berry v. American Central Insurance — 8 N.Y.S. 762

Majority

p. 762

Berry v. American Cent. Ins. Co.

(Supreme Court, General Term, Fourth Department.

February, 1890.)

Headnote

Appeal—Review—Weight of Evidence.

Findings of facts by a judge, on a trial without a jury, will not be disturbed on appeal, where they are supported by the evidence.

Appeal from circuit court, Jefferson county.

An action by Herman Berry against the American Central Life Insurance Company of St. Louis, to recover upon an insurance policy. The defense was a want of title in the plaintiff to the property insured, and also a settlement of the claim. Plaintiff replied that the settlement was procured by fraud. Trial was had before the court without a jury, and resulted in a judgment for plaintiff, from which defendant appeals.

Argued before Hardin, P. J., and Martin and Merwin, JJ.

I. N. Ames, for appellant. Hannibal Smith, for respondent.

After carefully looking into the evidence given on the trial, we are satisfied that the findings of fact are supported by the evidence, and are in accordance with the weight of the evidence. We must therefore accept the findings of fact made by the trial judge. We cannot, therefore, agree with the learned counsel for the appellant, who claims in his points that “there is no evidence out of which the court can spell fraud,” in respect to-the circumstances attending the interview between the plaintiff and the agent of the defendant at the time the plaintiff was induced to surrender the policy, arid receive from the defendant’s agent a draft upon the defendant for $400. We have looked at the exceptions taken during the progress of the trial, and find nothing in them justifying an interference with the decision made at the circuit. Upon the main questions involved in the case, we are of the opinion that they are satisfactorily discussed and disposed of by the opinion of the learned trial judge. We therefore affirm the judgment entered. Judgment affirmed, with costs. All concur.