Majority
p. 918Hobart F. Clark, Resp’t, v. Edward Livingstone, App’lt. (New York Common Pleas, General Term, Filed December 30, 1889.)
Headnote
Appeal—Judgment rendered on conflicting evidence.An npp líate court will not reverse a judgment in favor of plaintiff rendered on conflicting evidence even though it may deem the weight to be in favor of defendant where the plaintiff's testimony is not inconsistent and is not clearly overborne by defendant’s proof.
Appeal from judgment of the seventh district court.
Evarts, Ghoate & Beaman, for app’lt; Moore & Wallace, for yesp’ti
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.
Van Hoesen and Bookstaver, JJ., concur.