May v. Meierdierck — 42 N.Y. St. Rep. 469

Majority

p. 469

William A. May, Resp’t, v. John H. Meierdierck, App’lt.

(New York Common Pleas,

General Term,

Filed January 4, 1892.)

Headnote

Appeal—Weight op evidence.

In an action to recover for building an iron awning in front of a saloon, the evidence was conflicting and evenly balanced as far as credibility and interest of witnesses was concerned. It was claimed that the inducement for defendant to put up the awning was not sufficient to lead him to agree to do it, but plaintiff's testimony showed that there were others who were willing to do it to get the saloonkeeper’s trade, which defendant was desirous of keeping. Held, that on such evenly balanced testimony the judgment of the justice would not be disturbed.

Appeal from a judgment rendered in the district court of the city of Mew York for the eleventh judicial district

McMahon & Mabbett, for resp’t; Hudspeth & Golly er, for app’lt.

This action was brought by the plaintiff to recover of the defendant the sum of $175, with interest, for work, labor and services rendered and materials furnished in constructing a corrugated iron awning to a building on the southeast corner of Fifty-seventh street and Eleventh avenue, in the city of Mew York. The plaintiff is a builder of awnings, the defendant is a brewer, and one William F. Maas was the owner of the saloon where the awning in question was erected.

The appellant does not contend that there was not evidence in this case sufficient to warrant the justice in finding a verdict for the plaintiff, but claims that the evidence offered on his part so greatly preponderated that this court on a review of the whole testimony should reverse the judgment

We have carefully examined the evidence and find it very conflicting and evenly balanced as far as credibility and the interest of the witnesses were concerned. It is strongly urged that the inducement for the defendant to' put up the awning was not sufficient to lead him to agree to do it; but on the other hand it is shown that there were other parties who were willing to do it provided Maas would have given them his trade, which the defendant was desirous of keeping.

Where there is a conflict of evidence, this court will not interfere with the finding of the justice below, unless the evidence be of such convincing character as to lead to the conclusion that the justice must have been influenced by prejudice, partiality or passion, or has manifestly neglected through mistake to deliberate upon the whole testimony. Dempsey v. Paige, 4 E. D. Smith, 218; Donohue v. Henry, id., 164.

We cannot say on such evenly balanced testimony that the

p. 470

justice erred, in the conclusion to which he arrived, or was influenced by prejudice, partiality or passion.

Therefore, in our opinion, the judgment should be affirmed, with costs.

Bischoff, J., concurs.