
    SCHAPIRO v. BLOCK et al.
    (Supreme Court, Appellate Term.
    May 24, 1899.)
    Appeal—Weight op Evidence.
    In case of conflicting evidence, a judgment will not be disturbed, as against the weight of evidence, except in cases of palpable mistake, prejudice, passion, or partiality, or unless it is clearly and strongly against the preponderance of evidence.
    Appeal from municipal court, borough of Manhattan, First district.
    Action by Davis Schapiro against Samuel Block and another. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Argued before FREEDMAN, P. J., and MacLEAN and LEVEN-TRITT, JJ.
    George E. Steinmuller, for appellants.
    John Callahan, for respondent.
   FREEDMAN, P. J.

This is an action brought to recover the sum of $180 claimed to be due for commissions earned by one Oppenheim in obtaining a loan of $18,000 upon the real estate of the defendant Levy, the claim having been assigned to the plaintiff. The testimony is conflicting upon the questions involved, and a cursory examination of the record might lead to the impression that the judgment was against the weight of evidence. A careful examination shows, however, that the witness Oppenheim, on whose testimony the plaintiff’s case depends, is supported by the probabilities that, had he been informed on the 3d day of October that • Mrs. Levy had obtained the loan elsewhere, as testified to by her and Miss Hene, he would not have continued his negotiations with a reputable firm, and completed all the necessary arrangements to obtain the loan.

The silence of the defendant Block as to his having already obtained the loan, when called upon by the witness Wainwright, on the 8th of October, and asked by him if he had authorized Oppenheim to obtain the loan, is also significant. No motion was made at the close of the testimony for a dismissal of the complaint upon any ground, and a careful consideration of all the facts and circumstances of the case does not convince me that there is such a disregard of the weight of evidence by the court below as to warrant a disturbance of the judgment. Weight of evidence does not consist in mere number of witnesses, and the-decisions are very uniform to the effect that judgments will not be disturbed where there is a conflict of evidence, except in cases-of palpable mistake, prejudice, passion, or partiality, or unless the-judgment is clearly and strongly against the preponderance of evidence.

Judgment affirmed, with costs to respondent. All concur.  