
    Benjamin Dreyer, Resp't, v. John H. Meyer et al., App'lts.
    (Supreme Court, Appellate Division, Second Department,
    Filed April, 21, 1896.)
    Trial—Evidence.
    The error in refusing to admit in evidence a certain receipt, which defendant swore the plaintiff signed with his mark, but which the plaintiff and his sons denied, is cured by the fact that the receipt in dispute had already been offered in evidence without objection.
    Appeal from a judgment, affirming a judgment in favor of plaintiff, recovered before a justice of the peace.
    Frank N. O’Brien, for app’lts; Klein & Rondich, for resp’t.
   PER CURIAM.

This action is to recover balance due for work done by the plaintiff as painter. The only question litigated on the trial was whether plaintiff had been paid in full or not. 'The real dispute was whether a certain payment of $117 was or was not made. The determination of the case involved the simple question who were to be believed, the plaintiff and his son or the defendants. The transaction in dispute was so simple, and so barren of surrounding circumstances tending to support either one party or the other, that on this record it is impossible for the appellate court to say who should have been credited. The determination of the justice, who saw the witnesses and heard them testify, must necessarily he conclusive. It is claimed that the justice erred by refusing to admit in evidence a certain receipt, which defendants swore the plaintiff signed with his mark, but which the plaintiff and his son denied. It is sufficient answer to this that the receipt in dispute had already been offered and received in evidence without objection. Further, the case was not tried by a jury, but before the justice. It appears he subsequently excluded the receipt, on the ground that it was not proved to have been executed by the plaintiff. As he tried and determined the questions of fact in the case, this ruling was, in effect, not a ruling on a question of law, but his decision that, as matter of fact, the plaintiff did not sign the receipt. The error was, therefore, harmless.

The judgment appealed from should be affirmed, with costs.  