
    Michael Goodman, Resp’t, v. Abele Riccadonna, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 3, 1895.)
    
    Appeal — Conflicting evidence.
    The determination of a justice of the district court, upon conflicting evidence, is not the subject of review by the common pleas, unless it appears that he was influenced by prejudice, passion, or partiality.
    Appeal from a judgment in favor of plaintiff.
    
      Friend & House, for app’lt; Arthur Rothschild for resp’t.
   Bookstaver, J.

— At the close of the testimony, defendant moved for judgment, on the ground that no authority had been shown in the defendants chef to receive the goods, and duly excepted to the denial of the motion. This is the only exception in the record. The evidence upon this point, as well as upon every material fact at issue, is conflicting. Plaintiff testified that the' defendant had dealt with him for about twelve years; that he ordered the goods in question, which were delivered and at his request taken upstairs to the head cook or chef, who receipted for them. When asked upon his direct examination whether he received the goods, defendant said, “I do not know,” and afterwards said he did not receive them. Plaintiff’s testimony was corroborated by the evidence given by his employe who delivered a part of the goods; defendant’s, by his wife.

The determination of a justice of a district court, upon conflicting evidence, is not the subject of review by this court, unless it appears that he was influenced by prejudice, passion, or partiality. Prince v. Feller, 10 Misc. Rep. 422; 63 St. Rep. 521. This judgment must therefore be affirmed, with costs.

All concur.  