p. 674Henry E. Dreher, Resp’t, v. Patrick Connolly and Patrick Mahony, App’lts.Plaintiff’s assignor sold and delivered merchandise for the use of a saloon formerly conducted by defendants, but in fact at that time occupied by one McQ-. Defendants’ firm name was continued upon the premises, and there was no indication of change of ownership. Held, that plaintiff’s assignor was justified in assuming that defendants continued to be owners, and that defendants by so permitting the use of their firm name were es-topped from denying that the sale was to them and on their credit.
Appeal from fourth district court.
Action to recover for merchandise sold and delivered.
J. T Cornell, for app’lts; N. ¡3. Levy, for resp’t.
Notwithstanding the positive denial by the defendants of the purchase of the merchandise, for the recovery of the value of which this action was brought, there appears from the examination of the evidence sufficient to sustain a finding that, at the time of the sale and delivery, the defendants were the owners of the saloon at 310 Bowery, at which, and for the use of which, the merchandise was delivered, and that by permitting their firm name to be continued after the premises had passed into the possession of McGonigle, without any indication of change of ownership, the plaintiff’s assignor was justified in assuming that defendants continued to be owners at the time of the sale and delivery of the merchandise in question, and that thereby the defendants were estopped from denying that the sale was to them and upon their credit.
p. 675The appellate court will not reverse a judgment of the court below on a mere conflict of testimony, if there is sufficient evidence to support it, although on the whole evidence the appellate court might have arrived at a different conclusion. See
Fixam v. Brown, 3 N. Y. State Rep., 608.
Judgment affirmed, with costs.
Larremore, Ch. J., concurs.