Weiss v. Strauss — 39 N.Y. St. Rep. 78

Majority

p. 78

Moses Weiss, Resp’t, v. Jacob Strauss, App’lt.

(New York Common Pleas, General Term,

Filed June 1, 1891.)

Headnote

Evidence—Conflict—Beview.

Where there is a conflict of evidence, the court will not interfere with the judgment of the justice, unless the evidence he of such conflicting character as to clearly indicate that the justice must have been influenced by prejudice, partiality or passion, or has manifestly neglected to deliberate upon the whole testimony.

Appeal from a judgment of the ninth district court, rendered upon a trial before a justice without a jury.

I. N. Falk, for app’lt; L. Levene, for resp’t.

—The issues to be determined were purely of fact, as to which the evidence was conflicting. Fo error of law is charged, and the reversal is sought upon the facts.

We have often before held in this court, that, when there is a conflict of evidence we will not interfere with the judgment of the justice unless the evidence be of such conflicting character as to clearly indicate that the justice must have been influenced by prejudice, partiality or passion, or has manifestly neglected to deliberate upon the whole testimony. Dempsey v. Paige, 4 E. D. Smith, 219. An examination of the evidence in this case does not lead us to such a conclusion. There is no claim that the work sued for was not done by the plaintiff. The contention is that this work was included in a former contract for work upon the same property. The receipted bill for the former work was put in evidence, and no item of that work is specified in the bill for work-upon which this action is brought The plaintiff testified to doing the work for which he seeks to recover in this action, and its. value, and to having been requested by the defendant to do it, and to defendant’s promise to pay for it Plaintiff’s testimony is-confirmed by the witness Alexander, who swears that he heard

p. 79

the defendant tell the plaintiff to do all the extra work and he would pay him for it.

The justice, if he believed the plaintiff and his witness, as he undoubtedly did, was right in rendering the judgment appealed from.

The judgment must be affirmed, with costs.

Bischoff, J., concurs.