Furst v. Jacobson — 59 N.Y. St. Rep. 660

Majority

p. 660

Jacob Furst, as Treasurer, etc., App’lt v. Simon Jacobson, Resp’t.

(New York Common Pleas, General Term,

Filed June 4, 1894.)

Headnote

Appeal—Conflict of evidence.

The decision oí a district court justice upon a conflict of fact, which practically requires him to disbelieve the evidence given by one or the other side in reaching his conclusion, will not be interfered with by the common pleas, in the absence of any apparent bias, prejudice or failure to deliberate properly upon the whole evidence.

p. 661

Appeal from a judgment of the district court in the city of New York, for the fourth judicial district, rendered by the justice, without a jury, in favor of the defendant. Action for money had and received.

Benj, F. Gretsch, for app’lt; George Hahn, for resp’t.

The action was brought to recover the sum of $20 alleged to have been loaned to the defendant by the Furriers’ Union, an unincorporated association^! which plaintiff was treasurer, the defendant being a member of the association. In support of his claim the plaintiff produced four printed forms, each setting forth a promise to pay the sum of $5 loaned at the time of execution, this re-payment to be made when the subscriber should be at work in the season of 1892. It is undisputed that these papers were signed by the defendant, and that at the time of such signing he received the amount in question, but the defendant’s testimony shows that, in the parties’ understanding, the money was given to him absolutely upon his application, as of right, he being at that time a member in good standing and “ locked out ” in accordance with the order of the association. He further testified that he was informed at the time of the transaction that the papers referred to were merely receipts which it was necessary for him to sign, and that relying upon this representation and being unable to read English he did so sign them. According to the extract from the constitution of the association, read upon the trial j it appears that no loans were permitted and that all money paid to members was to be in the form of gifts. Evidence was given for the plaintiff to the effect that an amendment to this constitution had been made about a month previous to the payment in question, whereby loans were provided for, but no record of its adoption was produced. The witness, testifying to this fact, further stated that the defendant was present at the meeting when the amendment was adopted, and that he voted in favor of it. This the defendant flatly denied, stating that he was not present at such meeting and had no knowledge of the amendment. We consider that the courts determined adversely to the plaintiff is supported by the evidence, for, by giving credit to the defendant’s testimony, a finding that the contract to repay was induced by false representations properly results and an availing defense is thus established. With the justices decision upon a conflict of fact which practically required him to disbelieve the evidence given by one side or the other in reaching his conclusion, we are not to interfere in the absence of any apparent bias or prejudice or failure to properly deliberate upon the whole evidence. The few exceptions taken upon the trial are not relied upon by appellant, and an examination of them discloses no error.

Judgment affirmed, with costs.

Bookstaver, P. J., concurs.