
    George H. Jones, Respondent, v. Theodore Palumbo, Appellant.
    (New York Common Pleas — General Term,
    February, 1895.)
    Where the evidence as to the facts was conflicting, and it does not appear that the justice was influenced by passion, prejudice or bias, his decision thereon will not be disturbed.
    Appeal by the defendant from a judgment of the District Court in the city of New York for the fifth judicial district, rendered by the justice thereof, without a jury, in favor of the plaintiff.
    . Action to recover a balance alleged to be due plaintiff for work, labor and services and materials furnished as a plumber.
    The pleadings were oral, and the defenses pleaded, were a general denial, payment and nonjoinder of parties defendant.
    The-opinion states the facts, so.far as they are material. '
    
      Scott Lord, for appellant.
    
      Jacob Levy, for respondent.
   Giegerich, J.

The defendant seeks a reversal of the judgment solely upon the -facts, there being no error of law charged.

The main question litigated upon the trial was whether the work was done for the defendant or for the partnership of which he claims to have been a member.

The plaintiff testified that about July, 1892, the defendant ordered the work to be done, and that the services and materials were rendered and furnished during a period from July, 1892, to February, 1893, and that the bill amounted to $170.77, upon which $51 was paid on account, leaving a'balance due of $119.77.' ' '

The plaintiff further testified that after the work was conrpleted the defendant came to his office, and, after some conversation in the. presence of Mr. Lewis, his bookkeeper,'to the effect that he did not know anything about the defendant having a partner, and that he would not accept him, and after defendant had made a payment of fifty-one dollars on account, the plaintiff caused his bookkeeper to make out a bill addressed to Palumbo & Jordano, at the request of the defendant (which bill defendant offered in evidence), and that the defendant promised to pay the balance of the bill within a short space of time.

The plaintiff’s testimony was corroborated by his bookkeeper, Mr.* Alexander Lewis.

The defendant was the only witness for the defense. He testified that one Yicinzo Jordano was his partner and joint owner of the premises upon which the work was done from July, 1893, to March, 1894; that they sold such premises on May first; that they each gave directions as to the work; that he never requested plaintiff’s bookkeeper to make out a bill in the name of the firm; that he made the payment on accconnt upon February 17, 1893; that he received the said bill one or two days after its date, February 17, 1893. He also testified that he was in plaintiff’s office on this date and said to him: “Mr. Jones, the house, I suppose, is sold because we signed an agreement; I am a partner in that house, and I will give you my partner’s address. I want to pay my share because I don’t want trouble. And he agreed to take my share, $51 and some cents, and gave a receipt for that,” It will be observed that the amount of the bill was originally $170.77, and that defendant was in error when he testified his share amounted -to the sum above stated.' It is also manifest, if the testimony of the defendant, that from July, 1893, to March, 1894, he was a partner of and joint owner -with -Jordano of said premises, is true, that the liability of the defendant is conclusively established, as the bill in question shows that the work was commenced on October 7, 1892, and completed on February 16, 1893 ; but if not true, then that fact was undoubtedly considered in connection with the other facts and circumstances of the case by the trial justice, who had the advantage of observing the manner of the defendant while upon the witness stand, was probably influenced by these circumstances in measuring the degree of credibility which should be attributed to his testimony (McLaughlin v. O’Toole,. 1 Misc. Rep. 172, 173), and he was justified in finding (as we assume, from the judgment, he did find) that the work was done solely upon the defendant’s individual account and liability. As the determination of these questions is peculiarly within the province of the justice, they are, therefore, not the subject of review here, the elements justifying such review not appearing in this case., Lynes v. Hickey, 4 Misc. Rep. 522; Weiss v. Strauss, 14 N. Y. Supp. 776.

For the reasons stated we think the judgment should be affirmed, with costs.

Bookstaver and Bischoff,. JJ., concur.

Judgment affirmed, with costs.  