
    SUPREME COURT —APPELLATE TERM,
    SEPTEMBER, 1897.
    Laura Broads, Respondent, v. Louis D. Livingston et al., Appellants.
    Appeal from1 judgment rendered by the justice of the Seventh Judicial District Court in favor of the plaintiff.
    Louis H. Levin, for appellants.
    Thomas Gilleran, for respondent.
   Bischoff, J.

The plaintiff conducted a" laundry business, under the name of the “ National Steam Laundry,” and performed services for the defendants in the laundrying of shirt-waists .manufactured by them.

The claim in suit was for an unpaid balance due. for such work, and, denying- the plaintiff’s allegations, the .defendants set up a counterclaim for the value of fiftyffwo dozen shirt-waists, alleged to have been sent- by' them to the plaintiff in the usUal'course of dealing and not returned, the principal issue in the case being as to the merits of this counterclaim.

„ It was-.the defendants’ custom tq furnish a slip, or list, with- each lot of goods sent to the plaintiff’s laundry, delivering both the goods and .the .slip to' her expressman, and a.memorandum- of the amount of goods thus' delivered, corresponding to the slip, was made at the time and preserved by the defendants’ -bookkeeper.

On receipt of the goods and: slips Hit -the laundry-the slips were. filed and the goods, when laundried, were returned'to- the defendants, as. called for by the appropriate slip,-by which;the:--number . of pieces was verified.

According to the defendants’ evidence, the plaintiff had failed to return goods .called for by two slips, of which an alleged duplicate memorandum had been entered in the- defendants’ books, while, on the other hand, it was shown for the plaintiff that all -goods delivered to her. or to her expressman had been accounted for...; The issue was of the credibility of the plaintiff’s -employees as. ■against the defendants’, and the justice has found, with] the testimony-.Of the former, that the goods which are'the subject of the-counterclaim were not at ány time delivered-by- tire. defendants to the plaintiff. '

It is contended that the probabilities of the case tell strongly for the defendants,-in that 'small'mistakes had been made by-the plaintiff, in dealing with tiieir_goods,_at several times, and that the pieces in question may well have been sent, through the plaintiff’s mistake, to other parties,’whose' goods, -similar in design, were also laundried by her; alsoi that the slips might readily have been lostrwhen.,in.,the .plaintiff’s hands, since they were .kept in.an-unlocked drawer in a room to which many employees had access.

"We do not think that the defendants’ case is sufficiently strong to .justify our-:. reversal- of the judgment as against-the weight of-the "evidence. The justice, after hearing and observing- the witnesses, was evidently impressed with the truth of the plaintiff’s account of the matter, ¡and believed that, the-defendants’- employees, .were mistaken in their statement that the goods had actually been sent from the defendants’ place of business, or’ delivered to the plaintiff’s representative.

Much weight is to be attached to his finding of the fact, and we should be unwilling to disturb that finding upon the presumption that these' goods were lost and the corresponding slips purloined by the plaintiff’s employees, when ample evidence was given that her duty to the defendants had been fully performed.

■There is no force in the point suggested in the appellants’ behalf that the recovery was non secundum allegata et probata, because the amount awarded was less than the amount demanded by the plaintiff and authorized by the proof. Here there is no inconsistency between the theory upon which the action proceeded and. that upon which the judgment was rendered, as in the cases cited, where the action was brought to recover a stipulated sum under a special agreement, and a recovery was had for a different amount, as upon a quantum, valebat or quantum mermt, concerning which there was no proof. The recovery may not have been adequate compensation to the plaintiff in view of her demand for judgment and the proof, but, even so, she only was thereby aggrieved. Hence the appellants cannot justly complain.

Judgment affirmed, with costs.

Daly P. J., and McAdam, J., concur.

Judgment affirmed, with costs.  