Queen v. Bell — 51 N.Y. St. Rep. 610

Majority

p. 610

Montgomery Queen, App’lt, v. George H. Bell et al., Resp’ts.

(New York Superior Court, General Term,

Filed March 6, 1893.)

Headnote

Appeal — Conflict of evidence.

Where the conflict of evidence was strong and there is no fact or combination of facts that determine the case in favor of one party, the finding of the court below for the other party should he sustained.

Appeal from a judgment dismissing plaintiff’s complaint entered upon findings of fact, etc., made by a judge at special term.

H. B. Kinghorn, for app’lt; J. Stewart Ross, for resp’t.

The relief claimed by the plaintiff was that he be adjudged the equitable owner of a lease taken by the defendants in their name and that they be adjudged to assign it to him.

The ground as claimed for this relief was that when defendant Bell obtained the lease, with the other defendant, French, Bell was the broker and agent of the plaintiff, employed to obtain a lease of the kind that was afterwards made. Apart from this ground the plaintiff makes no claim. The court has found that Bell was not the plaintiff’s broker and agent. The learned counsel for the appellant argues that this finding is contrary to the testimony. The conclusion argued for can only be reached by ascertaining that the credibility of the plaintiff and his witnesses is superior to that of the defendants and their witnesses. This does not here appear. The conflict between the parties was strong. There is no fact or combination of facts that determines the case in favor of the plaintiff and the finding below should be sustained.

Another finding, conclusive in its nature, must be sustained. It

p. 611

was found that the plaintiff gave up definitely his attempt to obtain the lease before' the defendants took the lease. This must also be sustained on the judge’s rendering of the facts.

Judgment appealed from affirmed, with costs.

GlLDERSLEEVE, J., concurs.