
    The New York, Lake Erie & Wertern R. R. Co., Pl’ff, v. Edward C. Beirne, App’lt, and James W. Smith, Resp’t.
    
      Supreme Court, General Term, Second Department
    
    
      Filed May 12, 1890.)
    
    Appeal — Decision of court on evidence of the parties only will NOT BE DISTURBED.
    The determination of the trial court will not be disturbed on appeal where the only evidence upon the trial was that of two of the parties and conflicting.
    
      Appeal from judgment directing cancellation and surrender of assignments of claims for wages held by appellant, and for costs to respondent.
    During the months of April, May and June, 1888, the defendant, James W. Smith, was employed by plaintiffs as a locomotive engineer and earned $178.32.
    The defendant, Edward C. Beirne, served notice upon the railway company that he held assignments for each of such months, given to him by the defendant Smith, covering such wages, and forbid payment to Smith, who denied the validity of such assignments on the ground that they were given to defendant, Beirne,. as collateral security for usurious loans made by Beirne to him,, which had been renewed from time to time by his paying Beirnesomething on account, talcing up the old assignments and giving-new ones, and that he had fully repaid all loans with lawful interest
    The action was bought by plaintiff to have determined who was the proper party to whom they might make payment and protect themselves from further claim.
    The defendants were the only witnesses on the trial and their evidence was conflicting.
    The court held that the transactions between defendants related to loans of money and were usurious because each loan was to-be repaid with interest at five per cent a month.
    
      John W. Lyon, for app’lt; A. Van Filen, for resp’t.
   Pratt, J.

This case depends on the testimony of two witnesses. The trial judge who saw them and heard the testimony could, decide which was in the right far better than an appellate court, can do.

There are no questions of law that require discussion.

Judgment affirmed, with costs.

Dykman", J., concurs.  