
    Allan Lee Smidt, App’lt, v. Leo C. Dessar, Resp’t
    
      (New York Common Pleas, General Term,
    
    
      Filed June 3, 1895.)
    
    1. Appeal — Conflicting evidence.
    Where a question has been decided upon a conflict of testimony, the justice’s decision thereon will not be disturbed in the absence of inad- ' vertence, mistake, prejudice or passion on his part.
    2. Contract — Construction.
    Where there is no ambiguity in a contract, its construction is for the court.
    3. Same.
    An agreement to give plaintiff a certain sum for the trial of cases, and to guaranty two cases per week, does not entitle the defendant to compen"sation for any case not tried by him.
    Appeal from a judgment in favor of defendant.
    
      William C. Reddy, for app’lt; Burr & De Lacy, for resd’t.
   Bookstaver, J.

— The agreement sued upon is as follows :

“ It is agreed between Leo. 0. Dessar and Allen Lee Smidt that Smidt is to commence April 7tb, 1892, the trial of cases before commissioners at a fee of $40 per case, ($25 cash and $15 on collection) ; Dessar guaranteeing Smidt two (2) cases per week. Either party may terminate this agreement by one week’s notice to the other.
“N. Y, April 6th, 1892. [Signed] Leo 0. Dessab."

The plaintiff’s claim rests upon the contention that under this agreement the defendant guaranteed him two cases a week; that he worked ten weeks before the commission, and during that time-tried seventeen eases, no more being given him; and he seeks to-recover $120 for the three cases so withheld. Defendant contends that he had a calendar of fifty cases to be tried ; that he turned this over to plaintiff; and that plaintiff had entire charge of it,, and in the ten weeks tried them as rapidly as he could, and tried all he could before the commission adjourned, in number seventeen, for which he has been paid. The agreement was correctly interpreted by the justice. Under it the defendant guaranteed to plaintiff two cases a week, but he only agreed to pay him for the cases he actually tried ; and the whole matter resolves itself into a question of fact as to whether defendant furnished the-cases according to the guaranty. This question has been decided upon a conflict of testimony in favor of the defendant, and the justice’s decision thereon will not be disturbed in the absence of inadvertance, mistake, prejudice or passion on his part. Mead v. Pope, 7 Misc. Rep. 181; 57 St. Rep. 585.

The plaintiff challenges the decision upon the further ground that the justice erred in excluding testimony as to the terms of the contract. There is no ambiguity in the contract, and its construction was for the court, whose interpretation, as we have said before, we think was correct, and the exclusion of this testimony was not error. Gerard v. Cowperthwait, 50 St. Rep. 592; Campbell v. Jimenes, 57 St. Rep. 480.

For these reasons the judgment must be affirmed, with costs.  