
    The White Rock Lime & Cement Company, Resp’t, v. Robert Dick, App’lt.
    
      (New York City Court, General Term,
    
    
      Filed June 20, 1894.)
    
    Tkial—Conflicting evidence.
    The trial justice, in case of a conflict of evidence, should submit the question of fact to the jury.
    
      Charles A. Flammer, for app’lt; Kurzman & Frankenheimer, for resp’t.
   ISTewburger, J.

This action is brought to recover for goods sold and delivered. The answer is a general denial. It appears that the defendant, a builder, erected eight buildings on the south side of Ninetieth street between Ninth and Tenth avenues in this city. Plaintiff claims that the goods sold and delivered were used in the plastering work of the said building. Defendant concedes that the goods were used on the buildings, but claims that the credit was given to one Burke with whom the defendant had a contract to do the plastering. There was a conflict between plaintiff’s and defendant’s witnesses and therefore it was the duty of the trial justice to submit the question to the jury. That the judge’s charge was a proper and fair one is apparent, as the appellant has failed to print the same or call our attention to any exception thereto. The case fails to disclose any errors on the trial. The judgment must therefore be affirmed with costs.

Fitzsimons, P. J., and Conlan, J., concur.  