Manaher v. Hoffman , 683 N.Y.S.2d 443 ( 1998 )

—Judgment unanimously affirmed with costs. Memorandum: Defendant appeals from a judgment entered following a bench trial awarding plaintiff damages of $2,843.20, representing the unpaid balance for black cherry trees removed from plaintiff’s land pursuant to the parties’ timber sale contract. We reject defendant’s contention that the decision is contrary to the weight of the evidence (see generally, Thoreson v Penthouse Intl., 179 AD2d 29, 31, affd 80 NY2d 490, rearg denied 81 NY2d 835). Pursuant to the contract, defendant agreed to pay for the timber that was removed from plaintiff’s land. Thus, Supreme Court properly relied on the testimony of plaintiff’s forestry appraiser regarding his measurements of the amount of that timber. Contrary to defendant’s contention, the testimony of defendant’s witness regarding measurements taken only of the timber ultimately purchased by the lumber company is not probative of the amount of timber actually removed from plaintiff’s property. (Appeal from Judgment of Supreme Court, Cattaraugus County, Nenno, J. — Contract.) Present — Denman, P. J., Green, Hayes, Balio and Boehm, JJ.