Alford v. Stevens , 1871 N.Y. App. Div. LEXIS 170 ( 1871 )

By the Court, P. Potter, J.

The justice obtained jurisdiction, in this action, by a summons duly issued and served, the appearance of parties, and the joining of issue therein. However defective the preliminary proceedings, in the affidavit, and form of the bond, may have been, after two trials by jury, in which both parties appeared by counsel, and after agreeing to submit the case to the justice for his decision, the defects in the preliminary proceedings (if there were any) are to be regarded as waived. And this court will not enter upon an examination of that point.

There is no other question in this case which can be reviewed by the court but this; thát the judgment was given without sufficient evidence to sustain it, and that it is against law, and the weight of evidence. Upon a careful reading of the case, I do not think these objections are well taken.

First. There is sufficient evidence, if it was believed by the justice, to sustain the judgment; and though there was a conflict in the evidence, it was for the justice to determine which was most credible. He knew the parties, and heard them testify, and it was for him to judge of this question.

Second. Assuming that the justice correctly weighed the evidence, then the judgment is not against law. The property, then, was the plaintiff’s; and then the act of Bichardson was • tortious, and the defendant could get no good title from him; his possession was wrongful. If the justice was right in his findings of fact, Bichardson violated his agreement by delivering the plaintiff’s robe to the defendant; and the defendant’s title was no better than Biehardson’s.

Third. The judgment is sustained by positive, direct and corroborating evidence, sufficient to uphold a judgment. It is not the duty of the reviewing court to measure, in nice scales, the weight of evidence, when it is in conflict. • It is not strikingly so, if at all. Indeed it is not for us to say; but as it-reads, I think the justice correctly decided the facts. He made no error in ruling, and I think the judgment should be affirmed.

[Third Department, General Term, at Elmira, April 4, 1871.

Judgment affirmed.

Miller, P. Potter and Parker, Justices.]