
    Christopher H. Holstein, Appellant, v. William H. Clark, Respondent.
    (Superior Court of Buffalo—General Term,
    December, 1895.)
    Appeal—Finding upon conflicting evidence.
    "A finding as to fraud upon conflicting evidence will not be disturbed on appeal, unless there is a clear preponderance of evidence against it:
    Appeal from judgment of the Municipal Court of Buffalo in favor of the defendant.
    
      Alfred B. Osgoodby, for appellant.
    
      Wood & Gibbons, for respondent.
   Titus, Ch. J.

This, action was brought in the Municipal Court for fraud in the purchase of a bill of groceries'from the the plaintiff by the defendant.

The purchase of the groceries is admitted, but the fraud is ■denied. Upon that question the court below found in favor , of the defendant.

While there is evidence which would have justified a finding on this question against the defendant, we think that the court, having all of- the witnesses before it, could determine from their appearance upon the stand and the general character of their conduct and manner of testifying, which were the more entitled to be believed, and the finding upon this -question should not be disturbed in the absence of such a preponderance of evidence as would lead us, as a matter of law,to reversé the judgment.

That condition does not exist in this case, and we think the judgment of the court below should be affirmed, with, costs. '

Hatch and'White,' JJ., concur.

Judgment affirmed, with costs.  