
    SILVER, Respondent, v. ELIAS, Appellant.
    (Supreme Court, Appellate Term.
    June, 1901.)
    Action by Marks Silver against Joseph Elias. Shafer & Levin, for appellant. Ralph Nathan, for respondent.
   PER'CURIAM.

A former judgment in favor of the plaintiff was set aside by the appellate term because against the weight of evidence. If the evidence on the present trial had been the same as that on the former, we might adopt a like course. There is, however, an important difference. It was testified by an apparently disinterested witness that the note in suit was brought to Kaplan, the payee, by one Cohen, the manager of defendant’s business. On the former trial Cohen was called, and denied that he had ever seen the note, that it was given Mm by defendant, or was delivered to Kaplan. On the present trial Cohen was not called, and consequently the evidence of the delivery of the note to Kaplan was uncontradieted. We have examined the exceptions, and find none that call for a reversal, and under ail the circumstances are not disposed to interfere with the second judgment. Judgment affirmed, with costs.  