
    Patrick O’Dowd, Respondent, v. Roger V. Bonnell, Appellant.
    (Supreme, Court, Appellate Term,
    July, 1896.)
    Appeal — Conflicting evidence.
    The judgment of á District Court justice rendered upon conflicting evidence will not tie disturbed on "appeal,
    Appeal from." the.judgment of the justice of the Eleventh District Court "in favor of the plaintiff for $87.50" and costs,, in an action for work and labor in steainfitting in No. 251 Fifth avenue, in November, 1894.' ■ • ■
    P. O. Taiman, for appellant.
    Thornall &: Hull, for respondent.
   Daly, P. J.

The plaintiff was employed by.the defendant to remove two -steam radiators from one part of the building to another part and connect them with the main steam pipe. He used for the purpose about ten feet of ‘old pipe which he found on the premises. A leak was discovered from thé'work ,a week or ten-days afterward,- and some repairs were made by the janitor, who had worked as a steamfitters’ helper, and.‘who testified that there was twine and packing round the valves, and that he took- out the valves and put in new ones, and that he subsequently told plaintiff several pipes were split and the elbows and nipples were not fixed, and there was no valve there. '

In January following the -work was examined by . an engineer, who testified that' the connecting pipe was split and that the radiator was .not connected with it at the elbows. The plaintiff testified that the work wás properly performed, he having done some pairt of it personally and having tested" it, and that there was no twine or packing round the valves; that' he was -directed by the • -defendant to use the old material on the- premises, but that the pipe he put in appeared to be all right. ■ The defendant denied that plaintiff was. restricted to the Use of old material.

The case presented'a conflict" of evidence and as the-justice had the witnesses before him he was' better qualified than we to deter-" mine "the credit to be given to their testimony. "While the statement of the engineer who examined the work in January was specific as to the defects found, it is not certain that the plaintiff was responsible for them. It was proved that a split might occur in a pipe at any time after it was laid, and in view of the fact that the janitor, Titus, who may not have been well qualified for the purpose, worked at the valves and investigated the connections between the time plaintiff finished his work and the engineer examined the radiators, it was not clear that the latter saw the connections in the condition plaintiff left them.

The judgment should be affirmed.

MoAdam and Bischott, JJ., concur.

Judgment affirmed, with costs.  