May v. Meierdierck , 42 N.Y. St. Rep. 469 ( 1892 )

Bookstaver, J.

This action was brought by the plaintiff to recover of the defendant the sum of $175, with interest, for work, labor, and services rendered and materials furnished in constructing a corrugated iron awning to a building on the south-east corner of Fifty-Seventh street and Eleventh avenue in the' city of 2iew York. The plaintiff is a builder of awnings. The defendant is a brewer; and one William F. Maas was the owner of the saloon where the awning in question was erected. The appellant does not contend that there was not evidence in this case sufficient to warrant the justice in finding a verdict for the plaintiff, but claims that the evidence offered on his part so greatly preponderated that this court, on a review of the whole testimony, should reverse the judgment. We have carefully examined the evidence, and find it very conflicting, and évenly balanced as far as credibility and interest of the witnesses were concerned. It is strongly urged that the inducement for the defendant to put up the awning was not sufficient to lead him to agree to do it; but, on the other hand, it is shown that there were other parties who were willing to do it, provided Maas would have given them his trade, which the defendant was desirous of keeping. Where there is a conflict of evidence this court will not interfere with the finding of the justice below unless the evidence be of such convincing character as to lead to the conclusion that the justice must have been influenced by prejudice, partiality, or passion, or has manifestly neglected, through mistake, to deliberate upon the whole testimony. Dempsey v. Paige, 4 E. D. Smith, 218; Donohue v. Henry, Id. 164. We cannot say, on such evenly-balanced testimony, that the justice erred in the conclusion to which he arrived, or was influenced by prejudice, partiality, or passion. Therefore, in our opinion, the judgment should be affirmed, with costs.