
    Kozer v. Sommer.
    
      (Supreme Court, General Term, Fifth Department.
    
    June, 1892.)
    Appeal—Be view—Weight of Evidence.
    Where the evidence is conflicting, and in one view of it is sufficient to sustain the verdict, such verdict will not be disturbed on appeal.
    Appeal from Monroe county court.
    Action by Thomas Kozer against August Sommer. From a judgment reversing the judgment of a justice’s court, entered on the verdict in plaintiff’s favor, plaintiff appeals.
    Reversed.
    , Argued before Dwight, P. J., and Macomber and Lewis, JJ.
    
      T. jS. Dean, for appellant. N. Bull, for respondent.
   Dwight, P. J.

The action was to recover the balance of the agreed price of 142 bushels of potatoes sold and delivered by the plaintiff to the defendant. The answer was a general denial merely. The defense sought to be established was failure to perform an entire contract to sell and deliver 200 bushels or more. It is plain that this defense was not strictly available to the defendant under liis answer, but, assuming that the variance was one which might be disregarded under the liberal rule prescribed for justices’ courts, (Code Civil Proc. § 2943,) yet there arose, upon the evidence, a distinct issue of fact, whether the contract was for the sale and delivery of not less than 200 bushels, or of the quantity of potatoes which the plaintiff had on hand, supposed to be about 200 bushels, but which, upon sorting, proved to be only 142 bushels, the quantity actually delivered. The evidence was confined to the testimony of the plaintiff on the one hand, and the defendant on the other. The' question was peculiarly one for the jury, and it must be presumed, in support of their verdict, that they found on that question in accordance with the testimony of the plaintiff, and we are quite disposed to believe that that finding was in accordance with the truth of the case. Certainly it was supported by evidence which the jury had a right to believe, and we think it should not have been disturbed on appeal. The judgment of the county court should'be reversed, and that of the justice affirmed.

Judgment of the county court of Monroe county, appealed from, reversed, and that of the justice affirmed, with costs to the plaintiff in this court and in the county court. All concur.  