
    Dennis Dermody, Respondent, v. Addison B. Flesher, Appellant.
    (Supreme Court, Appellate Term,
    January, 1898.)
    Contract dependent on the satisfaction of ax pupil—Capricious dis- • satisfaction.
    Where a person, maintaining a school for instruction in the millinery art, specially contracts with a pupil that, if she is not satisfied with the teaching, materials and in .every respect, he will refund the fee which she pays, he. constitutes .the pupil the sole arbiter of her own satisfaction-and must return the fee if she is not satisfied in every respect; and, if it be assumed that the dissatisfaction must not be merely capricious, the finding of a justice of a District Court of the city of New York in favor of the pupil, resolves that question in favor of the assignee of the cause of action of the pupil.
    Appeal by defendant from a judgment of the First District Court. ! ■
    Wilson, Bennett & Underhill, for appellant.
    W. E. Cook, for respondent.
   McAdam, J.

The defendant kept a school in which he agreed to instruct in the millinery art any' one willing to pay $25, and, according to his advertisement, he guaranteed entire satisfaction. The plaintiff’s assignor,- Elizabeth O. Meade, joined the school about January 1, 189Í7, under a special contract with .the defendant by which he was to instruct her in the art by the aid of com- ■ petent teachers and with the very best materials for the' purpose, and if she, was not satisfied in every respect he agreed to refund the fee of $25, which the plaintiff then and .there paid. .

After Miss Meade had attended the school for a few days she became dissatisfied with the teaching, the materials and her treatment generally.1 She complained of' these' things to Mrs. Flesher, the manager, and subsequently to the defendant, from whom she demanded the return of the $25, according to the agreement. The defendant refused to pay, whereupon Miss Meade transferred her demand to the plaintiff, who brought the present action and at the trial obtained.a judgment in his favor for the amount claimed.

The defendant having agreed that the instruction to be given should be satisfactory to the pupil, he constituted her the sole arbiter of her own satisfaction, and he must stand by his contract to return to her the fee of $25 if she was not satisfied in every respect. Johnson v. Bindseil, 15 Daly, 492; 16 id. 232; Gray v. Alabama Nat. Bk., 30 N. Y. St. Repr. 824; Glenny v. Lacy, 16 id. 798; Tyler v. Ames, 6 Lans. 280; Moore v. Goodwin, 43 Hun, 534. If we go further and hold that the dissatisfaction must not be capricious, but substantial and justified by the facts, the finding of the justice, like that of a jury, in favor of the plaintiff resolves that question in his favor. Hummel v. Stern, 15 Misc. Rep. 27.

The defendant urges that the action should not have, been brought against him, but against his wife. The evidence sufficiently shows that he conducted the school. He speaks óf it in his testimony as his, and gives the number of his pupils. He made the contract with the plaintiff’s assignor without disclosing any agency on his part, and led her to believe and act on the belief that the school was his, and it is too late now for him to seriously question his liability as principal contractor.

It is objected that the justice allowed the plaintiff to amend, the bill of particulars at the trial. The court clearly possessed the power.. Parsons v. Sutton, 66 N. Y. at p. 95. The defendant did not claim that he was in any manner surprised by the amendment, nor was the amendment of a character calculated to surprise him. The bill of particulars was merely amended to conform to evidence of the assignor and her sister which went in without objection; and it is doubtful whether any amendment was necessary. Chadbourne v. Del., etc., R. R. Co., 6 Daly, 215.

The case involved a clear conflict' of evidence, and the trial judge, who saw the witnesses and heard them testify, had a better opportunity to judge of their credibility and the value of their' testimony than we have by a mere reading of the return; and his findings of fact should be accepted unless error is apparent. We find no reason for disturbing his conclusions.

Judgment affirmed, with costs.

Daly, P. J., concurs.

• Judgment affirmed, with costs. ;  