Brian v. Mead — 39 N.Y. St. Rep. 921

Majority

p. 921

Oscar G. Brian, Resp’t, v. Solomon Mead, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 2, 1891.)

Headnote

Appeal—Decision on conflicting evidence.

In an action to reform a contract by changing the boundary line in the description of the premises, the plaintiff was sustained in his view by one witness and the defendant by two. Held, that where the testimony is so evenly balanced the decision of the trial court would not he disturbed.

Appeal from judgment in favor of plaintiff.

Action to reform a contract for the sale of wood upon a certain tract of land. Plaintiff claimed that there was an omission of a portion of the land by the description as given in the contract

Charles Haines, for app’lt; Abram J. Miller, for resp’t

—The appeal in this case presents only a question of fact The proof shows that the parties made an agreement by which the defendant sold to the plaintiff all the wood standing within certain described boundaries. The district was marked off by blazed or marked lines, but when the contract was put in writing a portion of the district was left out

p. 922

of the same. The parties differ as to the facts. The plaintiff testifies that the defendant was “ satisfied with the marks as we had made them.”

The plaintiff’s view of the fact was supported by the testimony of Mr. Adams. The defendant denies that there was any omission of the description and he is supported in his view by the witnesses Johnson and Lockwood. There is no case for an appellate court to interfere. The decision of the trial judge must be deemed to be final upon a question so evenly balanced as to the witnesses and where there is nothing in the testimony to call for a reversal.

Judgment affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.