
    Jamin S. Morse, Resp’t, v. Francis B. Thurber et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 2, 1894.)
    
    1. Evidence—Declarations—Agent.
    Tlie declarations of one, to whom a party refers another for information are competent in favor of the latter against the former party.
    2. Appeal—Finding.
    The finding of a justice, upon conflicting evidence, on a material issue will not be disturbed.
    Appeal from a judgment of the district court in the city of Hew York for the eleventh judicial district rendered by the justice without a jury, in favor of the plaintiff. Action for work, labor and services, and materials furnished.
    
      H. Arlington, for app’lts; Warner and Crawford, for resp’t.
   Bischoff, J.

This action was brought to recover for materials and labor furnished by plaintiff in the erection of a certain watchman’s recorder system upon the defendant’s premises. The plaintiff’s cause rested upon a contract alleged to have been made through plaintiff’s agent Morse and defendant’s agent Minrick, and this appeal is based substantially upon the contention that no authority from the defendants to Minrick to make the contract appears. To this we cannot accede. There is undisputed evidence that the plaintiff’s agent called upon the defendant Why-land and had a conversation with him in regard to installing the plant in question ; that the defendant Whyland then referred Morse, the plaintiff’s agent, to Minrick and the negotiations, ending in the order for the installing of such plant, were carried on by Morse, with such Minrick. The defendant’s evidence is to the effect that the plant was installed at plaintiff’s instance and at his own risk and that the defendant Whyland so informed the plaintiff’s workmen while they were engaged in erecting the instrument. There is sufficient evidence to support the judgment and to justify the rulings of the justice with regard to Minrick’s statements, and upon the conflict which appears as to the intention of the parties the justice’s finding is not to be disturbed. Weiss v. Strauss, 39 St. Rep. 78; Schwartz v. Wechler, 2 Misc. R. 57 ; 49 St. Rep. 145; Lynes v. Hickey, 4 Misc. Rep. 522; 54 St. Rep. 120. There are no extrinsic circumstances appearing in this case which would turn the balance of probability in favor of the appellants and we are unable to hold that the judgment is against the weight of the evidence. An examination of the exceptions fail to disclose any prejudice to the appellants. Judgment affirmed with costs.

All concur.  