
    CLARK v. SMITH.
    (Common Pleas of New York City and Comity, General Term.
    August 1, 1894.)
    Appeal—Review—Weight and Sufficiency of Evidence.
    Where there is a conflict in the evidence on the vital issue, the judgment will not be disturbed on appeal, unless it is contrary to the evidence, or it appears that the justice was influenced by prejudice or passion.
    Appeal from third district court.
    Action by Garrett D. Clark against Amelia Smith to recover two months’ rent alleged to be due in a written lease. A judgment in favor of defendant was rendered by the justice with a jury, and plaintiff appeals. Affirmed.
    Argued before BOOKSTAVER and BISCHOFF, JJ.
    S. V. R. Cooper, for appellant.
    Thomas P. Rush, for respondent.
   BOOKSTAVER, J.

This appeal presents only questions of fact. There was a direct conflict upon the one vital point in issue, namely, whether plaintiff accepted the surrender of the premises; and we are not able to say that the judgment is against the evidence, or the weight of evidence, nor does it appear that the justice was influenced by prejudice or passion. Mead v. Pope, 7 Misc. Rep. 181, 27 N. Y. Supp. 338. Judgment must be affirmed, with costs.  