
    The Patterson Gas Governor Co., Respondent, v. Samuel G. Bayne et al., Appellants.
    (Supreme Court, Appellate Term,
    February, 1896.)
    Appeal — Conflict of evidence.
    In an action upon a contract for the purchase of a gas-governor on condition that, upon trial, it should show a saving of a certain percentage of gas; if not, to be removed at the vendor’s expense,, the evidence as to the fact of such saving was conflicting, and it appeared that no direction to remove' it had been given. Held, that a decision in favor of the plaintiff would not be disturbed.
    Appeal by defendants from judgment of the Eighth Judicial District Court.
    Taylor & Parker (Herman Aaron, of counsel), for appellants.
    P. C. Taiman, for- respondent.
   McAdam, J.

The-action was on a! contract in these words;

“ New York, November 19; 1894.
“ Patterson Gas Governor Co.
■ 553- West 33d Street.
“Please attach to meter at Riverside drive, comer of 108th street, Patterson gas governor, for which I hereby promise to pay to your order ninety dollars after thirty days’ fair trial, provided said machine effects a saving of from fifteen to forty per cent., as demonstrated by actual time test, of same number of burners for a given period, with and without governor, against open street pressure. . Failing to record above saving machine to Be removed at your expense.
“ S. G. Bayne.”

The burden of proving performance of the condition that the governor would demonstrate after thirty days’ fair trial a saving of from fifteen to forty per cent in the consumption of gas rested upon the plaintiff. Patterson Gas Co. v. Glenby, 4 Mise, Rep.-532. ‘ Mr. O’Keefe, an employee of the plaintiff, testified that he tested the governor,-and that it effected a saving of thirty-two per cent. ; and Mr-.-■ Patterson, who is also connected with the plaintiff; testified that the defendant Samuel G. Bayne- told him-he was perfectly satisfied with the work of the governor, and that the company was not notified to take it away.

"On the'other hand, the defendant Samuel Q-.' Bayne.testified that' he never expressed himself satisfied with the governor; that it impaired the quality of the light, which was not as good after the governor was put on as it had been previously; in short, he. contended that the only effect of the governor was to check the pressure of the gas, and that any saving accomplished resulted from the want of that quantity and brilliancy of' light which he had theretofore'enjoyed.

The plaintiff was never officially notified of any imperfection in the governor, or called upon to take it away, and so far as the return discloses it is still in use by the defendants.

The action, though nominálly brought against Mr. Bayne and his wife, was treated throughout as a litigation against him alone; he was the only one served with process, and judgment was not entered' against her. No, motion was made to dismiss the action against the wife, and she was - practically regarded as béing.. out of the case, so that there is nothing to review as against her.

The vissue narrowed itself- down to a question of fact, which the -justice decided upon conflicting evidence; and, while we might have reached a different conclusion, it does not follow that the. justice erred..

. The judgment must, therefore, he affirmed, with costs.

Bischofp, J.,' concurs.

Judgment affirmed, with costs.'  