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Metal Stamping Co. v. Samuel

94 N.Y.S. 11 Court N.Y. App. Term Decision date 1905-05-23 English

Delivered by DOWLING, J.

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METAL STAMPING CO. v. SAMUEL et al.
(Supreme Court, Appellate Term.
May 23, 1905.)

Headnote

Appeal from Municipal Court—Finding—Conclusiveness.
Where the affidavits on appeal under the Municipal Court Act, Laws 1902, p. 1581, c. 580, § 319, show a conflict in the evidence, and the only question at issue is one of fact, the finding of the court below is conclusive.
Appeal from Municipal Court, Borough of Manhattan, First District.
Action by the Metal Stamping Company against David Samuel and others. From a judgment in favor of plaintiff, defendants appeal.
Affirmed.
Argfied before SCOTT, P. J„ and TRUAX and DOWLING, JJ.
Lachman & Goldsmith, for appellants.
Emanuel S. Cahn, for respondent.

This appeal comes up to be heard upon affidavits, as prescribed by section 319 'of the Municipal Court Act (Laws 1902, p. 1581, c. 580). An appeal under that section may be heard upon affidavits “as to the evidence and other proceedings taken, * * * and the court may determine the appeal as if a return had been duly made by the justice.” Walker v. Baermann, 44 App. Div. 587 , 61 N. Y. Supp. 91 , and same case, 47 App. Div. 635 , 62 N. Y. Supp. 414 . The appellants concede that the sole question at issue is one of fact. This issue was decided in favor of' the plaintiff in the court below, and an examination of the affidavits submitted by the respective parties upon this appeal presents the same conflict of evidence. It cannot be said that the finding of the

p. 12
court below was against the weight of evidence, and the claim by the appellants that the plaintiff was guilty of a breach of the contract is not supported by the testimony.

Judgment affirmed, with costs. All concur.

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