Griffin v. Todd

14 N.Y.S. 351, 39 N.Y. St. Rep. 19, 60 Hun 579, 1891 N.Y. Misc. LEXIS 1989

• Court: New York Supreme Court
• Decided: May 11, 1891
• Status: Published

Opinion

Pratt, J-.

This appeal involves only questions of fact decided below upon conflicting testimony. The judge who saw the witnesses, and heard them testify, was better qualified to pass upon their credibility than an appellate court can be, merely from reading their testimony. There seems to be evidence to sustain all the findings of fact, and the conclusions of law are appropriate to such findings, and the judgment must therefore be sustained. The parties went to trial upon the pleadings without objection. Evidence was adduced to contradict the plaintiff’s complaint and evidence, and in support of the allegations of the answer. Under such circumstances, it was the duty of the court to render a proper judgment upon the merits, without reference to the fact that there was not a specific denial of the allegations of the complaint. That point should have been raised upon the trial, when, if necessary, the defendant might have been allowed to amend. This contention is without merit upon another ground, and that is the fact that the answer substantially set up a denial by asserting facts which controvert the allegations in the complaint. We think either party had a right to repair the street to make it convenient and safe for both to travel upon, and the evidence fails to establish any unlawful acts on the part of the defendant which caused injury to the plaintiff; on the other hand, it clearly appeared that the defendant had greatly improved this highway, without detriment to any right of the plaintiff. Judgment affirmed, with costs.