
    TRENHOLM v. PROVIDENT SAV. LIFE ASSUR. SOC. OF NEW YORK.
    (Supreme Court, Appellate Term.
    June 22, 1903.)
    1. Appeal—Findings of Fact—Review.
    Plaintiff having, on a second trial, testified to a different date for the agreement from that given by him on the first trial, and his testimony being contradicted, the finding against him will not be disturbed on appeal.
    Appeal from Municipal Court, Borough of Manhattan, Tenth District.
    Action by William D. Trenholm against the Provident Savings Life Assurance Society of New York. From a judgment for defendant, plaintiff appeals. Affirmed.
    Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.
    Frank Trenholm, for appellant.
    William T. Gilbert, for respondent.
   FREEDMAN, P. J.

This action was brought to recover the sum of $159.50 damages for an alleged breach of contract to repair an apartment leased by plaintiff, and sublet by him to one Reimer. The action has been tried twice. Upon the first trial the plaintiff had a judgment, which was reversed by this court, and a new trial ordered. Upon the new trial the defendant had a judgment, from which the plaintiff appeals.

Upon the -first trial the plaintiff testified in his own favor, and his evidence was to the effect that the alleged agreement to repair was made by him with the defendant subsequent to the making of the lease, and Mr. Justice Giegerich, in writing the opinion, said:

“It does not appear that the defendant was bound, either by the terms of the original letting or the renewal thereof, to make any repairs. He was therefore under no obligation as landlord to make any, and the alleged promise made subsequently to the renewal was without consideration. Bronner v. Walter, 15 App. Div. 295-297, 44 N. Y. Supp. 583.”

Upon the present trial the plaintiff was again the only witness testifying in his favor to the making of the alleged contract, and he now fixes the time of such making as prior to the making of the lease. In this he is contradicted by the agent of the defendant, with whom the lease was made. Under such circumstances, what credence should be placed upon the plaintiff’s testimony was wholly for the trial judge to determine, and his decision should stand.

Judgment affirmed, with costs. All concur.  