
    TOLK v. LAPIN.
    (Common Pleas of New York City and County, General Term.
    August 1, 1894.)
    Apfeal—Review—Weight of Evidence.
    A finding on conflicting evidence will not be disturbed in the absence of passion, prejudice, or mistake.
    Appeal from fifth district court.
    Action by Herman Tolk against Harris Lapin for conversion. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.
    Argued before BOOKSTAVER and BISCHOFF, JJ.
    Alexander Finelite, for appellant.
    A. & L. Levy, for respondent.
   BOOKSTAVER, J.

On the trial it appeared that in March, 1893, the parties entered into an agreement whereby the plaintiff was to deliver to the defendant beer, soda, and seltzer, and the defendant to be charged therefor by the plaintiff at a certain amount, ■and the profits over and above the amount so charged were to be divided between them. There is little or no difference between the parties as to the quantity and value of the goods delivered under this agreement, save in one respect,—as to the small boxes of beer, where the plaintiff made a miscalculation, which was corrected, and the amount agreed upon at the trial. The chief differences between the parties are as to the amount of money paid by the defendant to the plaintiff, and the quantity of siphons and bottles returned by him. Plaintiff claimed that the defendant paid him only $1,780.19, while defendant claimed that he had paid the sum of $1,892.41; making a difference of $112.22. To substantiate this claim, defendant produced a pass book, in which the plaintiff entered the moneys as received, which foot up the amount claimed by the defendant. In explanation of this, the plaintiff testified that, the defendant not having the book with him at the time of the payments, he entered some of the items on defendant’s statements, which were incorrect, and that he also entered with the moneys received the commissions which were to be allowed the ■defendant, thus making the difference; and in this he seems to be substantiated, because it is unlikely that the defendant would have paid him the various odd cents which are credited if he had merely handed him money. As to the contention that the soda was paid for as received, the evidence is very contradictory; and this is also true of the testimony in regard to the number of bottles returned. The justice who tried the case, having the witnesses before him, could better judge from the manner in which the testimony was given and the surrounding circumstances than we can ■do; and, in the absence of passion, prejudice, mistake, or oversight being shown, we think the judgment should be affirmed, with costs.  