
    O’ROURKE et al., Respondents, v. SHERMAN, Appellant.
    [No. 1,164.]
    [Submitted October 25, 1899.
    Decided October 30, 1899.]
    
      New Trial — Insufficiency of Evidence — Discretion of Trial Judge.
    
    The Supreme Court will not disturb the discretion of the trial court in granting a new-trial, on the ground that the evidence was insufficient to sustain the verdict, where the record discloses a substantial conflict as to material matters.
    
      Appeal from District Court,, Silver Bow County; J. J. Mc-Ilatton, Judge.
    
    Action by John O’Rourke and Daniel O’Sullivan against E. H. Sherman. There was a verdict and judgment for defendant, and a new trial granted on motion of plaintiffs. From the order granting new trial, defendant appealed.
    Affirmed.
    
      Mr. John W. Goiter, for Appellant.
    
      Mr. Chas. JR. Leonard, for Respondent.
   PER CURIAM.

— Action to recover $1,233.76, alleged to be due by defendant under the terms of a written lease between plaintiffs as lessors and defendant as lessee. Defendant denied the indebtedness and alleged a surrender of the lease and an assignment of all his interest therein, with plaintiffs’ consent, and for the consideration of a release of his obligations thereunder, to the firm of T. J. Sherman & Co., of which firm defendant alleged plaintiff, O’Rourke, and defendant, and others were members. Trial to jury. Yerdict and judgment for defendant. Plaintiffs’ motion for a new trial upon the ground of the insufficiency of the evidence to sustain the verdict was granted. Defendant appeals from the order granting a new trial.

The record discloses a substantial conflict in the evidence as to material matters. The action of the trial court was therefore within the exercise of its sound discretion and cannot be disturbed by this Court. The order appealed from is affirmed.

Affirmed.  