
    Olena v. Huntington.
    
      (Supreme Court, General Term, Second Department.
    
    July 2, 1891.)
    Appeal—Conflicting Evidence—Pbovince of Juey.
    Where the record presents a sharp conflict of testimony in respect to certain facts in dispute which were submitted to the jury for their determination, the court will not interfere with their verdict on appeal.
    Appeal from circuit court, Kings county.
    Action by Theophilus D. Olena against Austin Huntington. From a judgment for plaintiff, defendant appeals.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      Hornblower, Byrne & Taylor, for appellant. Ayers & Walker, (Donald F. Ayres, of counsel,) for respondent.
   Dykman, J.

This is an appeal by the defendant from a judgment entered against him in favor of the plaintiff upon a verdict rendered at the circuit, and from an order denying a motion for a new trial upon the minutes of the court. The action was brought to recover the damages sustained by the plaintiff for the breach of a contract between the parties, by which the defendant employed the plaintiff as a salesman from the 25th day of January, 1890, until the 12th day of July, 1891, at a salary of $60 a week, with some contingent right to the profits of the business. The plaintiff entered upon the performance of his duties under the contract, and continued in the service of the defendant until the 25th day of May, 1890, when he was discharged. The defendant undertook to justify the discharge of the plaintiff under allegations of incompetency and misconduct, and at the trial considerable testimony was introduced by the defendant to substantiate the defense, and by the plaintiff to show that it was unjustifiable, arid the determination of the case depended upon the justice or injustice of the discharge. That being a question of fact which was sharply contested, and upon which there was testimony on both sides, it was for the determination of the jury alone. Such was the view of the trial judge, and he submitted the case to the jury in a fair and careful charge, and the plaintiff obtained the verdict. We must assume, therefore, that the questions involved were decided in favor of the plaintiff and his testimony, and that assumption justifies the verdict. We find no error, and the judgment and order appealed from should be affirmed, with costs.

All concur.  