
    Second Department,
    November, 1908.
    Antoni Puczko, Respondent, v. John Kovacs, Appellant.
    
      Debtor and creditor — bank deposit — conflict of evidence — questions for jury.
    
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 25th day of May, 1908, upon the verdict of a jury.
   Woodward, J.:

It is not disputed that the plaintiff, an illiterate Hungarian, deposited at various times between September 21, 1907, and January 26, 1908, sums of money aggregating §450. The defendant admits this. The plaintiff brings an action to recover the amount, and the defendant admits that there is owing the plaintiff the sum of §150, but claims that on the 25th day of October, 1907, the plaintiff demanded and received the sum of §300. There was a distinct conflict of evidence so pronounced in fact that the case has been twice tried, because the justice who originally tried it refused to determine the facts and caused the case to be sent to a jury, and the defendant now urges that the verdict is against the weight of evidence. We are unable to concur in this view. It is true that a greater number of witnesses testify in support of the defendant’s claim that the §300 was paid, but there are facts and circumstances which would justify a jury in believing that the plaintiff’s case was supported by the higher class of evidence. The testimony on the part of the defendant is contradictory in many respects, while that of the plaintiff seems entirely consistent with his claim. The case was one peculiarly within the province of a jury, and there being no legal error pointed out, there is no reason why the judgment should be disturbed. The judgment appealed from should be affirmed, with costs. Hooker, Gaynor, Rich and Miller, JJ., concurred. Judgment of the Municipal Court affirmed, with costs.  