Thomas v. Wittman , 57 N.Y.S. 209 ( 1899 )

Freedaiae, P. J.

This action was brought to recover certain sums of money deposited by the plaintiff with the defendant, which were used as margins in the purchase of stocks and grain, and the only question in the case is, whether the plaintiff was informed at the time he placed the money with defendant, that the defendant was a member of the stock exchanges of this city, and purchased stocks and grain in his own name, or whether he transacted business through the firm of E. D. Fox & Co., who subsequently failed, and through whose failure the margins were lost. The only direct testimony given upon the question was that of the plaintiff and the defendant, respectively, and their testimony was directly and emphatically'in conflict. Two other witnesses were sworn, neither of whose testimony had any direct bearing upon the question at issue. Several exhibits were also introduced for the purpose of corroborating the respective parties, but the most that can be said of their value as evidence is that the court might reasonably have drawn inferences from them in support of the testimony of either party.

The case comes within the well-known and oft-repeated rule, laid down by appellate courts, that a judgment of an inferior court will not be disturbed upon a question of fact upon which testimony has been given upon both sides, unless it appears that there has been bias, prejudice or partiality, or that it is clearly against the weight of evidence.

Nothing of that kind appearing in this case, the judgment must be affirmed, with costs. ,

MacLean and Leventritt, JJ., concur.

Judgment affirmed, with costs.