Borgia v. Gange — 88 N.Y.S. 923

Majority

p. 923

BORGIA v. GANGE.

(Supreme Court, Appellate Term.

June 23, 1904.)

Headnote

1. APPEA]>-VEBDICT—CONOLUSIVBNBSS.

Where the only question at issue was one of fact, and the testimony was hopelessly conflicting, the verdict "will not he interfered with.

Appeal from Municipal Court, Borough of Manhattan, Sixth District.

Action by Vincenzo Borgia against Antonio Gange. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before FREEDMAN, P. J., and MacLEAN and SCOTT, JJ.

Achille J. Oishei, for appellant.

John J. Freschi, for respondent.

Bringing this action to recover damages for breach of a contract wherein the defendant undertook to build a house with due diligence, and deliver it ready for occupancy on or before December 15, 1902, the plaintiff and his witnesses testified with positiveness that the building was unfinished and incomplete at. that time, while the defendant and his witnesses testified with equal positiveness that before that day everything, excepting extra work, was done and completed ; and so the learned justice charged the jury, without objection or exception from any one, that the only question to decide was whether the premises were completed and ready for occupancy on the date mentioned, and that, if they were, the verdict should be for the defendant, but, if otherwise, for the plaintiff, in the sum of $150, the sum concededly paid in installments by the plaintiff to the defendant. From the record alone it would be difficult to determine the weight of evidence for either side, as the reader inclines to one or to the other according as he peruses the testimony adduced for the plaintiff or for the defendant, in the dexterous offsets of particulars with plausibilities and probabilities, so that the judgment must be left as the learned justice left it on the jury’s verdict for the plaintiff.

Judgment affirmed, with costs. All concur.