
    Denis P. McCarthy, Resp’t, v. Patrick Gallagher, App’lt.
    
      (City Court of New York, General Term,
    
    
      Filed February 8, 1893.)
    
    Appeal — Judgment.
    Where the evidence is conflicting on all points, and there was sufficient, if believed, to sustain the findings of the court, the judgment will not be disturbed on appeal.
    Appeal from judgment in favor of plaintiff.
    
      H. A. Brann, for app’lt; Johnson & Johnson, for resp’t
   Fitzsimons, J.

The plaintiff is a painter, and the defendant is a builder.

The plaintiff agreed to paint houses Nos. 261 and 263 Madison street, owned by defendant, according to the terms of a certain written agreement

The plaintiff’s testimony is to the effect that he fully and fairly complied with the terms of his contract

The defendant’s testimony contradicts this statement, and claims that the plaintiff failed to do all the work he agreed to do, and that the work done was carelessly done and unworkmanlike, and that improper materials were used.

In this case, as in all cases of similar character, we find the defendant contradicting the plaintiff upon nearly every material and immaterial question involved, and in such event it was of course the duty and function of the trial justice to determine which party told the truth.

He did so in this case by selecting the plaintiff and his witnesses as the truthful ones, and as he had the advantage of seeing the witnesses, noticing the manner in which they delivered their testimony, and having the privilege of seeing the many things which usually occur during a trial, and which are indescribable, appealing to the instinct rather than the reason, but which just as surely as the most positive and convincing oral testimony point out where the truth lies, and as there is ample evidence to sustain his findings, and finding no errors, we would not be justified in doing otherwise than sustaining them.

The judgment must, therefore, be affirmed, with costs.

McGown and Yan Wyok, J J., concur.  