Randall v. Randall — 81 N.Y. Sup. Ct. 348

Majority

p. 348

William C. Randall, Appellant, v. Frank Randall, Respondent.

Headnote

Findings of the trial court — ichen not disturbed upon appeal.

Where the questions before a trial court were questions of fact, and the evidence was conflicting, the findings of such court cannot be disturbed upon appeal.

Appeal by the plaintiff, William C. Randall, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Clinton on the 2d day of March, 1891, upon the decision of the court rendered after a trial at the Clinton Circuit.

William F. Cantwell, for the appellant.

C. H. Beckwith, for the respondent.

We are unable to say that the trial judge did not properly exercise the discretion vested in him in regard to costs.

The questions in the case were of fact. The evidence was con fficting, and under well-settled principles the findings of the court below, rendered on such conflicting evidence, cannot be disturbed.

p. 349

The judge, however, seems to have made a slight mistake in his calculation as to two items. In the twelfth finding, page 17, he holds that plaintiff expended in April, 1880, thirty-five dollars; in March, 1880, twenty-five dollars, and upon one other occasion twenty-five dollars. It will be seen that in his calculation at page 11 the last above item is omitted, and that the expenditure of April, 1880, is put at twenty-five dollars instead of thirty-five dollars, making in all an error of thirty-five dollars. The judgment should have been larger, therefore, by one-lialf of that amount and interest, in all amounting to twenty-eight dollars and forty-four cents.

If defendant shall stipulate, within ten days after the service of a copy of the order herein, that the judgment be increased twenty-eight dollars and forty-four cents as of the date of the entry thereof, judgment shall be so modified, and, as so modified, affirmed, without costs to either party. If defendant fails to so stipulate, judgment reversed and a new trial granted, costs to abide the event.

Present — Mayham, P. J., Putnam and Herrick, JJ.

Judgment to be modified if defendant so stipulates, and, as so-modified, affirmed, without costs ; if defendant does not stipulate to modify judgment, then judgment reversed and a new trial granted, costs to abide the event.