Majority
p. 469Christopher H. Holstein, App’lt, v. William H. Clark, Resp't. (Buffalo Superior Court, General Term, Filed December 23, 1895.)
Headnote
Appeal—Evidence.The finding of the court upon a question should not he disturbed, in the absence of such a preponderance of evidence as would lead the appellate court, as a matter of law, to reverse the judgment.
Appeal from a judgment in favor of plaintiff.
Alfred B. Osgoodby, for app’lt;
Wood & Gibbons, for resp’t.
This action was brought in the municipal court for fraud in the purchase of a bill of groceries from the plaintiff by the defendant. The purchase of the groceries is admitted, but the fraud is denied. Hpon that question the court below found in favor of the defendant. While there is evidence which would have justified a finding of this question against the defendant, we think that the court, having all of the witnesses before it, could determine from their appearance upon the stand, and the general character of their conduct and manner of testifying, which were the
p. 470
more entitled to be believed; and the finding upon this question should not be disturbed, in the absence of such a preponderance of evidence as would lead us, as a matter of law, to reverse the judg-, ment. That condition does not exist in this case, and we think the judgment of the court below should be affirmed with costs.
All concur.