
    JACOB ROSENTHAL, RESPONDENT, v. JOSEPH ENGEL, APPELLANT.
    Argued October 2, 1928
    Decided March 11, 1929.
    Before Justices Tbenchakd, Kalisch and Lloyd.
    For the appellant, Cohen & Klein.
    
    For the respondent, David M. Litwin.
    
   Pee Cubiam.

This was an action in the Eirst District Court of Newark to recover on a check for $500 given to the defendant as deposit money at the execution of an agreement between the plaintiff as vendor and the defendant as purchaser for the sale of property in the city of Newark. The check was given on October 25th, 1927, and on the following day payment was stopped, defendant writing a letter stating that he could not go on with the transaction but giving no reason other than his inability to meet the payments. When the case came on for trial it was sought to show that the property was subject to encroachments of various kinds and this became an issue of fact as we think for the trial court. The case was heard by the judge without a jury, who gave judgment for the plaintiff. The defendant appeals and files twelve specifications of determinations with which he is dissatisfied in point of law, the substance of which is that the court erred for various reasons in giving judgment for the plaintiff.

The crucial point in the case was whether the evidence so clearly established the existence of the encroachments as to require a finding by the trial judge in favor of the defendant on that issue. Our reading of the testimony convinces us that it was not of a character to justify the withdrawal of the question as one of fact. A surveyor who was called by the defendant gave testimony from which it might be inferred that the encroachments existed, but his testimony was based largely on an old survey which had not been proved and was far from conclusive that said encroachment did exist.

A tenement house inspector testified that there were violations of the tenement house law in the property but there was nothing to indicate that this could not have been removed at the time fixed for settlement.

Under the circumstances we think that the question presented was one of fact, which cannot be here reviewed and that the judgment cannot consequently be disturbed.

It is, therefore, affirmed.  