Majority
p. 707Cordelia A. Martens et al., Resp’ts, v. Elizabeth H. Rightmire et al., App’lts. (Supreme Court, General Term,, First Department, Filed May 18, 1894.)
Headnote
Appeal—Evidence.A verdict, on conflicting evidence, will not be disturbed on appeal.
Appeal from a judgment in favor of plaintiffs.
Abram Kling, for app’lts; Christopher Fine, for resp’ts.
This action was brought to have a deed of certain premises, executed by one Jane Post, declared void, for fraud, etc. After a trial of the cause, the court decided in favor of the plaintiffs, and from the judgment setting aside said deed this appeal is taken.
The question presented is entirely one of fact. It seems to be impossible to reconcile the dispute. Although, in many instances, the evidence is not directly conflicting, it is 'so inferentially. The record is somewhat remarkable, in view of the quantity of incompetent testimony which seems to have been introduced upon both sides; but even this evidence affords few trustworthy indications in respect to the issues involved. The case is one in which the
p. 708
appearance of witnesses, their manner of testifying, and the circumstances surrounding the trial, which cannot be photographed upon the record, may have been very convincing to the trial judge and where there is nothing to show, more clearly than appears upon this record, that the trial judge either misconceived or gave undue weight to the evidence, we do not think that his judgment should be disturbed. The judgment appealed from should therefore be affirmed, with costs.
All concur.