Klenke v. Standard Oil Co.

Per Curiam.

After a careful examination of the record in this case, we are of the opinion that there was sufficient evidence upon all the questions in issue, if credited, to sustain a judgment in favor of the plaintiff. It has been repeatedly held in this court and in the Court of Common Pleas with respect to such appeals as this that the appellate court will not disturb the findings of fact of the trial justice, except under conditions which are not disclosed by the record here. Morgan v. Enright, 22 Misc. Rep. 737; Conroy v. Allen, 23 id. 125.

The rule laid down in that regard has special application here, inasmuch as the credibility of the witnesses was the determinative factor in ascertaining the facts of the case. It is peculiarly the function of the trial justice to pass upon this question, and for the reasons stated in the authorities it is seldom practicable for the appellate court to review, his decision upon it. Conroy v. Allen, supra; Felbel v. Kahn, 29 App. Div. 270. The facts having been found in favor of the plaintiff, they were sufficient as matter of law to support a judgment in his favor.

Present: Beekmah, P. J., Gildebsleeve and Giegerich, J J.

Judgment affirmed, with costs.