Smith v. Davis

Full title: WILLIAM M. SMITH, Appellant, v . HERMAN DAVIS et al., Respondents

Court: Supreme Court, Appellate Term

Date published: Feb 1, 1899

26 Misc. 798 (N.Y. App. Term 1899)

Opinion

February, 1899.

Smith Tuttle, for appellant.

Maurice M. Greenstein, for respondents.

LEVENTRITT, J.

To recover the unpaid balance of the purchase price of goods sold and delivered, the plaintiff brought this action. He contended that the defendants had effected purchases of shoes from one William B. Dibble, to the amount of $100.40, and having paid on account thereof only $70, there remained owing a balance of $30.40, which demand was duly assigned to him. The defendants resisted recovery upon the plea that they had fully paid for all the goods which they had purchased, and that the $30.40 claimed, represented certain shoes, which they had never bought, and which they returned shortly after receipt.

Upon the trial, the sole issue litigated was whether the rejected goods were or were not ordered by the defendants, and the trial justice accepting the version of the disputed transaction, as detailed by the defendants, rendered a verdict in their favor. The evidence fully justifies that conclusion. There is no question of law involved in this appeal. The appellant invokes a review of the determination of the justice upon a matter of fact, as to which there was conflicting evidence, and in the decision of which he seeks the substitution of the judgment of the appellate tribunal for that of the trial justice without any indication in the evidence that partiality, bias or prejudice induced or affected the conclusion, or that otherwise injustice has been done. It has been repeatedly held that under such circumstances the judgment of the court below will not be disturbed. It is to be regretted that so many hopeless appeals are prosecuted and appellants consequently subjected to unnecessary expense, oftentimes exceeding the amount in controversy.

The perusal of any one of a long series of authorities, which could be cited, should discourage the prosecution of appeals, purely upon questions of fact, which must necessarily eventuate in affirmance. Pelletreau v. U.S. Electric Light Power Co., 13 Misc. 237; Paterson Gas Co. v. Lichtenstein, 9 id. 126; Goodman v. Ricadonna, 13 id. 66; Mitchell, Vance Co. v. Daiker, 46 N.Y. St. Repr. 189; Lynch v. Kluber, 20 Misc. 601; Lowenthan v. Copland, 18 id. 6; Foster v. Meeks, id. 463.

The judgment must be affirmed, with costs.

FREEDMAN, P.J., and MacLEAN, J., concur.

Judgment affirmed, with costs.