Majority
p. 242LEONARDI et al. v. STEMMLER et al. (Supreme Court, Appellate Term. January 25, 1904.) Argued before FREEDMAN, P. J., and MacLEAN and DAVIS, JJ.
Headnote
1. Appeal—Review—Conflicting Evidence.The judgment of the trial court on conflicting evidence will not be disturbed on appeal.
Appeal from City Court of New York, Trial Term.
Action by Generosa Leonardi and others against Theodore W Stemmier and others. From a judgment in favor of plaintiffs, defendant Stemmier appeals. Affirmed.
Thbmas O’Callaghan (A. L. Pincoffs, of counsel), for appellant.
Henry ICuntz (Edward A. Brown, of counsel), for respondents.
The printed record contains but one notice of appeal, namely, by defendant Stemmier, and no certificate that the case contains all the evidence taken on the trial. What was intended to be such certificate was not signed by either of the attorneys nor by the trial justice. Moreover, it sufficiently appears that the claim of the plaintiffs was for extra work only, and that it was based upon the original promise of Stemmier, as owner of the premises, to pay therefor. Upon this point there was a conflict of testimony, which
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was determined by the trial justice in favor of the plaintiffs, and such determination should not be disturbed. Upon the exceptional facts disclosed, and no trial by jury having been demanded by the defendant Stemmier, the variance between the allegations of the complaint joining him as a contractor and the mechanic’s lien, as filed, naming him as the owner, is immaterial.
The judgment should be affirmed, with costs against the appellant.