Burr v. Schmerl

Appellate Terms of the Supreme Court of New York

Burr v. Schmerl

24 Misc. 749, 52 N.Y.S. 1139

CourtAppellate Terms of the Supreme Court of New York

DecidedJuly 15, 1898

StatusPublished

This text of 24 Misc. 749 (Burr v. Schmerl) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burr v. Schmerl, 24 Misc. 749, 52 N.Y.S. 1139 (N.Y. Ct. App. 1898).

Pincite

Opinion

Per Curiam.

There is nothing but a question of fact involved in this appeal. The issue was. decided by the court below in favor ■of the plaintiff upon a sharp conflict of evidence, which required the court to pass upon the' credibility of the witnesses. Under such circumstances, it is impossible for us to determine that, the court erred in finding a preponderance of evidence in favor of the plaintiff. The trial justice had the advantage of seeing the witnesses upon the stand and observing the manner in which their testimony was given — circumstances of no- little weight in determining a question of veracity. In such cases it has been repeatedly held that this court will not disturb the decision of the trial justice.

It is claimed that the evidence of alteration in the date of the bill of sale of the property in question is so patent that the conclusion is irresistible that a fraudulent alteration'had been made. We, are unable so to determine upon an inspection of the paper, and the trial justice having evidently found that no such alteration was proven, we cannot say that his conclusion in that regard was palpably erroneous. It follows that the judgment must be affirmed.

Present: Beekman, P. J., Gildersleeve and Giegerich, JJ.

Judgment affirmed, with costs.

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Per Curiam.

There is nothing but a question of fact involved in this appeal. The issue was. decided by the court below in favor ■of the plaintiff upon a sharp conflict of evidence, which required the court to pass upon the' credibility of the witnesses. Under such circumstances, it is impossible for us to determine that, the court erred in finding a preponderance of evidence in favor of the plaintiff. The trial justice had the advantage of seeing the witnesses upon the stand and observing the manner in which their testimony was given — circumstances of no- little weight in determining a question of veracity. In such cases it has been repeatedly held that this court will not disturb the decision of the trial justice.

It is claimed that the evidence of alteration in the date of the bill of sale of the property in question is so patent that the conclusion is irresistible that a fraudulent alteration'had been made. We, are unable so to determine upon an inspection of the paper, and the trial justice having evidently found that no such alteration was proven, we cannot say that his conclusion in that regard was palpably erroneous. It follows that the judgment must be affirmed.

Present: Beekman, P. J., Gildersleeve and Giegerich, JJ.

Judgment affirmed, with costs.

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Bluebook (online)

24 Misc. 749, 52 N.Y.S. 1139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burr-v-schmerl-nyappterm-1898.