
    McLaughlin v. O’Toole.
    New York Common Pleas — General Term,
    November, 1892.)
    In an action tried before a justice without a jury, his determination of the facts, except in case of palpable injustice, is conclusive.
    In an action to recover for goods sold and delivered, the defense was a denial and a counterclaim for work, labor and services for which defendant testified plaintiff promised to pay ; this evidence was not directly denied by plaintiff, but his version of the transaction was essentially different from that appearing from defendant’s testimony. Held, that a finding of the trial court in plaintiff’s favor was conclusive.
    Appeal from a judgment for plaintiff recovered in a District Court.
    Action to recover for building material, etc., sold and delivered, the defense being a denial and a counterclaim for work, labor and services, and materials furnished.
    
      James A. OʼGorman, for plaintiff (respondent).
    
      Lawrence P. Mingey, for defendant (appellant).
   Bischoff, J.

The action having heen tried before the justice below, without a jury, his determination of the facts, except in the case of palpable injustice, is conclusive upon appeal. Weiss v. Strauss, 39 N. Y. St. Repr. 78.

An examination of the testimony adduced on the trial discloses ample evidence to support plaintiff’s recovery, and we are unable to say that the justice erred in accepting the facts sworn to by plaintiff and his witnesses, as against the denial of them for the defense. Some of the evidence introduced for plaintiff ought unquestionably to have been excluded under proper objection, but as none was made, defendant should not now he heard to complain of its incompetency. Cohn v. Goldman, 76 N. Y. 284; Mead v. Shea, 92 id. 122; Coates v. First Natl. Bank of Emporia, 91 id. 20, 31.

Assuming with the defense that the chimney breasts which constitute the subject-matter of the counterclaim, were not part of the party wall referred to in the agreement in evidence, plaintiff’s liability to pay one-half the expense incurred therefor, rested entirely upon Ms alleged promise to pay. Such a promise was testified to by the defendant and, though it may not have been directly denied by the plaintiff, a sufficient conflict of evidence arose in respect to it by plaintiff’s version of the interview at which defendant alleged it was made, and which version differed essentially from the one appearing from defendant’s testimony, to make the determination below conclusive as a controverted question of fact.

Again, defendant’s testimony was subject to discredit, though not otherwise impeached, as that of a party in interest (Elwood v. Western U. Tel. Co., 45 N. Y. 549; Gildersleeve v. Landon, 73 id. 609; Honnegger v. Wettstein, 94 id. 252; Kavanaugh v. Wilson, 70 id. 177; Canajoharie Natl. Bank v. Diefendorf, 123 id. 191, 200), and as the trial justice had the advantage of personal observation of the witness while under examination by which he may have been properly influenced in measuring the degree of credibility which should be attributed to the testimony (Baird v. Mayor, etc., 96 N. Y. 567, 576), defendant cannot be said to have sustained the burden of showing that the rejection of the counterclaim was error. Tracey v. Altmeyer, 46 N. Y. 598, 604; Appleby v. Erie Co. Sav. Bank, 62 id. 12, 18; Carman, v. Pultz, 21 id. 547; Briant v. Trimmer, 47 id. 96, The judgment should be affirmed.

Judgment affirmed, with costs.

Daly, Ch. J., and Pryor, J., concur.

Judgment affirmed.  