Mead v. Pope — 57 N.Y. St. Rep. 535

Majority

p. 535

James Mead, Resp’t, v. William B. Pope, App’lt.

(New York Common Pleas, General Term,

Filed February 5, 1894.)

Headnote

Appeal—Conflicting Evidence.

Where the evidence creates a conflict upon a question of fact, the determination of the district court justice is not the subject of review in the

p. 536

general term, of the common pleas, in the absence of the elements which justify such review.

Appeal by the defendant from a judgment of the district-court in the city of New York for the first judicial district, rendered. upon a trial before the justice thereof, without a jury.

Action for goods sold and delivered.

The opinion states the material facts.

James Forrest, for app’lt; W Arrowsmith, for resp’t.

The appellant’s sole exception, as appears-from the record, was taken to the denial of his motion to dismiss-the complaint, made upon the close of the plaintiff’s case. Evidense was adduced upon the part of the plaintiff showing that the coke in question had been continuously delivered at the premises owned since July, 1891, by the defendant; that the bills-for the same, made out in defendant’s name, were paid partly in cash and partly by defendant’s check, during the period from July 11, 1891, to March 10th, 1892, and that these bills were founded upon receipts for the material signed with defendant’s-name by the engineer upon the premises. There, unquestionably, was sufficient evidence to support a cause of action for the price of the material which was shown to have been furnished in the usual manner, upon similar receipts by the engineer for a period subsequent to March 10th, 1892, no notice of revocation of the engineer’s ostensible authority, as implied from this course of dealing, having been given. The exception does not present error. The evidence given on behalf of the defendant created a conflict upon a question of fact, the determination of which was-peculiarly within the province of the justice below and is not the subject of review here, the elements justifying such review not appearing in this case. Lynes v. Hickey, 4 Misc. Rep., 522 ; 54 St. Rep., 120 ; 24 N. Y. Supp. 731 ; Weiss v. Strauss, 39 St. Rep. 78 ; 14 N. Y. Supp. 776 ; Dempsey v. Paige, 4 E. D. Smith, 219.

The question of change of title in the premises cannot be considered upon the record submitted. For all that appears, the deed mentioned as offered in evidence by the defendant was not received, but no exception appears. The deed is not found with the return and evidence is absent upon the point.

The judgment should be affirmed with costs.