
    
      John J. Pryor, Resp’t, v Hubbard A. Foster, App’lt.
    
    
      (Superior Court of Buffalo,
    
    
      General Term,
    
    
      Filed July 12, 1889.)
    
    Judgment—When not disturbed.
    Where no error is claimed to have been committed in the admission of evidence, and it cannot be said as a question of law that an error was committed in finding a disputed question of fact against the defendant, the judgment will not be disturbed.
    
      Fullerton, Becker & Hazel, for resp’t; F. J. Plumley, for app’lt.
    
      
       See S. C., 17 N. Y. State Rep., 473.
    
   Titus, J.

This case when last before this court on an appeal from a judgment of non-suit from the municipal court, was reversed on the ground that there was evidence from which the judge below or a jury could find that the defendant had been guilty of fraudulent representation, in making the lease of the premises to the plaintiff, as to the capacity of the furnace in the house to supply a sufficient quantity of heat to properly warm the dwelling house on the premises. The evidence taken on behalf of the plaintiff on the former trial was read and considered in evidence by stipulation on the trial from which this appeal is taken. Evidence was given by the defendant for the purpose of overcoming the plaintiff’s proof of fraud, and the court below found in favor of the plaintiff on this disputed question of fact. No error is claimed to have been committed in the admission of evidence. We are of the opinion that our former decision (17 N. Y. State Rep., 472), is decisive of the questions here raised. It cannot be said that there is such a preponderance of evidence on the part of the defendant as to entirely overcome the inference of fraud raised by the plaintiff’s testimony and his witnesses.

The court below had all of the witnesses before it, and we cannot say as a question of law that an error was committed in finding the fact against the defendant.

The judgment must be affirmed, with costs.

Beckwith, 0. J., and Hatch, J., concur.  