Metal Stamping Co. v. Samuel

Appellate Terms of the Supreme Court of New York

Metal Stamping Co. v. Samuel

94 N.Y.S. 11

Appellate Terms of the Supreme Court of New York·Decided May 23, 1905·Published

Opinion

DOWLING, J.

This appeal comes up to be heard upon affidavits, as prescribed by section 319 'of the Municipal Court Act (Laws 1902, p. 1581, c. 580). An appeal under that section may be heard upon affidavits “as to the evidence and other proceedings taken, * * * and the court may determine the appeal as if a return had been duly made by the justice.” Walker v. Baermann, 44 App. Div. 587, 61 N. Y. Supp. 91, and same case, 47 App. Div. 635, 62 N. Y. Supp. 414. The appellants concede that the sole question at issue is one of fact. This issue was decided in favor of' the plaintiff in the court below, and an examination of the affidavits submitted by the respective parties upon this appeal presents the same conflict of evidence. It cannot be said that the finding of the [12]*12court below was against the weight of evidence, and the claim by the appellants that the plaintiff was guilty of a breach of the contract is not supported by the testimony.

Judgment affirmed, with costs. All concur.

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DOWLING, J.

This appeal comes up to be heard upon affidavits, as prescribed by section 319 'of the Municipal Court Act (Laws 1902, p. 1581, c. 580). An appeal under that section may be heard upon affidavits “as to the evidence and other proceedings taken, * * * and the court may determine the appeal as if a return had been duly made by the justice.” Walker v. Baermann, 44 App. Div. 587, 61 N. Y. Supp. 91, and same case, 47 App. Div. 635, 62 N. Y. Supp. 414. The appellants concede that the sole question at issue is one of fact. This issue was decided in favor of' the plaintiff in the court below, and an examination of the affidavits submitted by the respective parties upon this appeal presents the same conflict of evidence. It cannot be said that the finding of the [12]*12court below was against the weight of evidence, and the claim by the appellants that the plaintiff was guilty of a breach of the contract is not supported by the testimony.

Judgment affirmed, with costs. All concur.

Metal Stamping Co. v. Samuel, 94 N.Y.S. 11 (N.Y. Ct. App. 1905).

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Opinion

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