
    International Tailoring Company, Respondent, v. Fred P. Bennett, Appellant.
    Second Department,
    June 8, 1906.
    County Court — power to set aside judgment of Justice’s Court as against weight of evidence — power should be exercised only when judgment not warranted by evidence—appeal from decision of County Court— respondent estopped by. position taken in County Court.
    A County Court in exercising the right given by the amendment to section 3063 .of the Code of Civil Procedure "made by the Laws of 1900, chapter 553, to reverse the judgments of a Justice’s Court and to grant new trials, should only reverse when the judgment "is so plainly against the weight of evidence that the decision of the justice or jury could not reasonably have been made.
    In an action in a Justice’s Court for the price of goods sold, conflicting evidence as to payment considered; and,
    
      Held, that the County Court was not warranted in setting aside a verdict for the defendant.
    
      When the County Court has reversed the judgment of a Justice's Court in favor of the defendant on the ground that the verdict was against the weight of evidence, and the defendant alone appeals from the decision of the County Court, the plaintiff cannot thereafter assert that the County Court should have given absolute judgment of reversal instead of granting a new trial.
    Appeal by the defendant, Fred P. Bennett, from a judgment of the County Court of Nassau county in favor of the plaintiff, entered in the office of the cleric of the county of Nassau on the 4th. day of May, 1905, reversing a judgment of a‘justice of the peace of the town of Hempstead. ' . . '
    
    
      Henry L. Maxson, for the appellant.
    
      Lincoln B. Haskin, for the respondent.
   Hooker, J.:

In Clinton v. Frear (107 App. Div. 571) this court recently took occasion to refer to the rule governing the power of the'County Court to reverse justices’ judgments and grant new trials. There the presiding justice wrote as follows : “The jurisdiction of the County Court to review the decision upon the facts and to determine the weight of the evidence was conferred by the amendment of section 3063 of the Code of .Civil Procedure effected by chapter 553 of the Laws of 1900. Prior to that amendment the power to reverse the judgment as against the weight of evidence where the evidence was conflicting did not exist at all. (Halsey v. Hart, 85 Hun, 46; Ludlum v. Couch, 10 App. Div. 603; City of Brooklyn v. B. C. & N. R. R. Co., 11 id. 168 ; Norton v. Arvernam Co., 14 id. 581, 584 ; Clark v. Daniels, 29 id. 600.) While the amendment referred to.undo.ubtedly did confer the power, it was held by the Appellate Division in the third department, in Murtagh v. Dempsey (85 App. Div. 204), that the authority so conferred should be exercised only when the justice’s judgment is so plainly against the weight and preponderance of proof .that it can be seen that the justice could not reasonably have arrivéd at the decision which he made. And this court, in the very recent decision of Von Der Born v. Schultz (104 App. Div. 94), held that where the evidence given in an action tried before a jury is so evenly balanced that reasonable men might differ as to the inferences to be drawn, therefrom, and' such evidence is fairly sub■mitted to the jury, the trial oov/rt should not, in the exercise of - its discretion) set-aside the verdict as against the weight of evidence, The rule, of course, is to he applied only with a due regard to the ' demands of justice in each case,, and; on giving full allowance to the .interest and partisanship of witnesses and the qualifying effects of ■ the ever-varying conditions of time, place and circumstance.”'

■Tested by this rule we are of opinion that the County Court should not-have reversed the judgment of the justice in this case. The plaintiff was a corporation engaged in the city of New York in ' the,manufacture of clothing; the defendant was á resident of Nassau county and had been in the business of taking orders for v clothing and having them made by- the plaintiff and had dealt thus for about a year prior to tiie 2d day of July, 1904. As his evidence is printed in the-record, Fyfe,. the plaintiff’s manager, merely testifies that defendant admitted' to' him- that he liad received certain .goods; that “ they were of the value of-—costs, $125.50.” He then testifies that the .action is for $'l‘20-.34 and that $5 has been credited ' to him on goods returned. A bill was then' received in evidence* marked Exhibit for plaintiff,” which Fyfe testified was a correct statement of goods sold and delivered during the period of the business relations between the parties, but such an exhibit does- not appear printed, Hockstin, who'was shipping clerk for.the plaintiff, testified that On October 16, 1903, he shipped a package to the. defendant which contained several suits of clothes. ' The evidence of Rapélyea, Terry and Cornwell, who, it is sought to be made to áppéar, were persons for- whom clothes contained in the shipment of October sixteenth were made, is of little weight because of the almost total failure to identify the clothes of which they testified' - with those contained' in the shipment of October sixteenth. Such' is the practical extent of the plaintiff’s evidence. The defendant testified that he never, received any goods from the plaintiff which he did not pay for; that all of' the goods sent to him came -marked 0, 0. D.; that he. does not owe the defendant anything ; that when he'received the. letter of December 28, 1903, he immediately • disrclaimed -by a reply that there was anything due from him, and offered in evidence this-letter, from which it appears that the plaintiff was uncertain on that day,' scarcely two months after the goods . were shipped, whether or not- they had been paid fori On this coilflicting evidence the jury found a verdict for the defendant,' and in it there is no such preponderance in plaiutifí’s favor as to justify tlie County Court in setting it at naught.

The respondent’s claim of irregularity in the judgment cannot avail it on this appeal. The defendant alone appealed from the judgment of the County Court. If the respondent’s claim is correct, then respondent was in the County Court entitled to a judgment of absolute- reversal instead of to the judgment which was entered reversing the justice’s judgment as against the weight of evidence and granting a new trial. Not having appealed therefrom, the plaintiff must be deemed satisfied therewith, and cannot now urge that the judgment should be affirmed because the County Court should have granted an absolute reversal of the justice’s judgment.

The judgment appealed from must be reversed and the judgment of the Justice’s Court affirmed, with costs in this court and the County Court to the appellant.

Hirschberg, P. J., Gaynor and Rich, JJ., concurred ; Miller, J., dissented.

Judgment of the County Court of Nassau county reversed, with costs, and judgment of the Justice’s Court restored.  