Majority
p. 488Nathan May, Resp’t, v. Bertha Hammerschlag, App’lt. (City Court of Brooklyn, General Term, Filed May 25, 1891.)
Headnote
Appeal—Verdict.Where in an action for goods sold and delivered there is a direct conflict in the testimony as to whether there was a sale or only a consignment of the goods, the verdict of the jury should he sustained.
Appeal from judgment in favor of plaintiff, entered on verdict, *,and from order denying motion for a new trial.
Action to recover a balance alleged to be due upon a sale by plaintiff’s assignor to defendant of butter and eggs. Defendant claimed that the goods were received by her on commission ; that she sold the same and had accounted therefor except to the extent of $1.40.
Anthony Barrett, for app’lt; Ira Leo Bamberger, for resp’t.
It is not stated in the appeal book that it contains all the evidence. Cheney v. N. Y. C. & H. R. R. R. Co., 16 Hun, 419 . But, on the assumption that it does, we have considered the question pressed on the argument that the verdict was against the weight of evidence. We have carefully read and weighed all the testimony in the case. The conflict is direct between the witnesses as to whether there was a sale or consignment of the goods to defendant There áre circumstances tending to weaken the force of their testimony. But, on all the evidence, we are of the opinion that the decision of the jury who heard and saw these witnesses should be respected and upheld.
Judgment and -order affirmed, with costs.
Van Wyck and Osborne, JJ., concur.