
    (85 App. Div. 204.)
    MURTAUGH v. DEMPSEY.
    (Supreme Court, Appellate Division, Third Department.
    June 30, 1903.)
    1. Justice’s Judgment — Reversal Because Contrary to Evidence — Powers of County Court.
    Under Code Civ. Proc. § 3063, as amended by Laws 1900, p. 1277, c. 553, allowing the county court to reverse a judgment ot the justice of the peace, because against the weight of evidence, that power is to be exercised only when the judgment is so plainly against the weight and preponderance of proof that it can he seen that the justice could not reasonably have arrived at the decision which he made.
    8. Landlord — Liability for Repairs — Evidence.
    In an action by a materialman against the owner of a building, who had contracted to pay for material to be used by the tenant for repairs, in which it appeared that the landlord required that the material be purchased at a reasonable price, evidence of acts of a servant of the tenant in purchasing material and attempting to get it as cheaply as possible was admissible.
    8. Same — Complaint in Another Action.
    A landlord agreed to pay for the material to be used in certain repairs to the premises, providing the tenant would pay for the work which he agreed to do, on the understanding that he was to continue as lessee after the building had been repaired. Held, in an action against the landlord by one who furnished material, that the complaint in an action by the tenant against the landlord to recover for the value of the labor performed in making repairs was inadmissible.
    Appeal from Franklin County Court.
    Action by Patrick J. Murtaugh against William Dempsey. From a judgment of the County Court, reversing a justice’s judgment for plaintiff, he appeals.
    Reversed.
    Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.
    Walter J. Mears, for appellant.
    Charles A. Burke, for respondent.
   HOUGHTON, J.

The defendant was owner of a building, a portion of which was occupied by one Bush as a meat market. Certain repairs were necessary to the cooler used in connection with said market, and an agreement was entered into between the defendant and his tenant that the defendant would furnish material for the repairs provided the tenant would furnish the labor. The defendant authorized Bush to purchase the material for such repairs as cheaply as he could, and he did purchase some of said material from the plaintiff on the credit of the defendant. The defendant paid a part of the bill, but refused to pay for two window sash and lights. The ground of refusal was that the windows were not a part of the material used in the repairs. The proof showed that they were necessary and proper in the construction of the cooler, and the old cooler was constructed in the same manner. The defendant was sworn in his own behalf in the trial court, and did not deny his agreement to pay for the material for the repairs, and admitted that he had paid some bills presented by other parties, but claimed that his agreement to buy material was for much less repair than was actually put upon the structure. He was at the building from time to time, and saw what was being done, and the proof against him was quite overwhelming that he had agreed to pay for all material, provided the tenant, Bush, would do the work.

Prior to the amendment of section 3063 of the Code of Civil Procedure by chapter 553, p. 1277, of the Laws of 1900, a County Court was not permitted to reverse a judgment of a justice of the peace because the judgment was against the weight of evidence. Until this amendment, the rule was that, where there was evidence upon both sides, with only slight evidence in support of the judgment, the County Court was not authorized to reverse the judgment, although such court might arrive at a conclusion upon the facts of the case, or the weight of evidence, different from that drawn by the justice. Clark v. Daniels, 29 App. Div. 601, 51 N. Y. Supp. 177; Burnham v. Butler, 31 N. Y. 481. It is said in Jacob v. Haefelien, 54 App. Div. 570, 66 N. Y. Supp. 1007, that'this amendment was brought about by the suggestion of the court in Northridge v. Astarita, 47 App. Div. 486, 62 N. Y. Supp. 441, that it would promote the ends of justice to confer upon appellate tribunals authority to review the judgments of justice’s and Municipal Courts to the same extent and subject to the same rules as were applicable to the review of judgments rendered by the Supreme Court.

It is manifest that the authority conferred by section 3063 of the Code upon County Courts to reverse a judgment of a justice’s court, because it is contrary to or against the weight of evidence, is to be exercised only when the judgment is so plainly against the weight of evidence and preponderance of proof that it can be seen that the justice could not reasonably have arrived at the decision which he made. The County Court, by this provision of the Code, has no greater power over judgments rendered by justices of the peace than has the Appellate Division and Court of Appeals over judgment of courts and referees. The rule governing the consideration of appeals has been stated in various ways, but all are to the same purport. In Sanger v. French, 157 N. Y. 213, 51 N. E. 979, O’Brien, J., says:

“A court on appeal cannot set aside the findings of the trial court merely because they are of opinion that, upon the record before them, they would feel constrained to find the fact the other way. It must appear judicially from the record that the findings are against the weight and preponderance of proof so plainly that it can be held that the trial court or referee could not reasonably have arrived at the conclusion expressed in the decision. In order, therefore, to sustain in this court a reversal of the referee upon the facts, it must appear that his findings are against the weight of evidence, or that the proofs so clearly preponderated in favor of a contrary result that it can be said with a reasonable degree of certainty that his conclusions were erroneous.”

In substantially the same language the rule is also laid down in Foster v. Bookwalter, 152 N. Y. 166, 46 N. E. 299. In Fox v. N. Y. Elevated R. R. Co., 42 App. Div. 613, 58 N. Y. Supp. 707, this rule is reiterated and applied to the consideration of the case, as also in Rowland v. Rowland, 40 App. Div. 606, 57 N. Y. Supp. 566, and in Franklin Coal Co. v. Hicks, 46 App. Div. 441, 61 N. Y. Supp. 875.

In the present case, there was no preponderance of evidence in favor of the defendant. On the contrary, the preponderance was in favor of the plaintiff that the defendant had agreed to furnish the material for the repairs, including the windows, and had authorized his tenant to purchase them on his account, not only by his directions so to do, but by his knowledge of what was being done, and his recognition by payment of other bills incurred in the same manner. The decision of the County Court must therefore be reversed, unless there was some error in the admission or exclusion of evidence on the trial in the justice’s court which justified a reversal.

We find no error in the rulings there made. Proof of what Dimond did in the purchase of the material in suit was proper. He was the servant of Bush, who was authorized by the defendant to make the purchase, and he was deputized by Bush to select the material and inquire the price. What he did toward attempting to get the material cheaply was in accordance with the defendant’s requirement -that the purchases should be made at a reasonable price. The refusal of the justice to admit in evidence the complaint in an action of Bush against the present defendant was not error. There was no plea of payment in the defendant’s answer, and that action was to recover, not the price of the material here sought to be obtained, but the value of the labor performed by Bush in making the repairs, which he had agreed to furnish without charge on the understanding that he was to continue as lessee of the building which he had thus repaired. The issues in that action, therefore, were not material to the one on trial, and could in no way be binding on the present plaintiff, nor a bar to his recovery. Nor, as claimed, was the complaint material as impeaching the testimony of a witness; for the plaintiff in that action was not sworn as a witness on the present trial. These were the only rulings invoked to sustain the reversal. They being correct, there was nothing which permitted the County Court to reverse the judgment of the justice.

The judgment and order of the County Court should be reversed, and the judgment of the justice affirmed! with costs in this court and in the County Court. All concur.  