
    WEBER v. THOM.
    (Supreme Court, Appellate Division, Second Department.
    July 11, 1898.)
    Review—Conflicting Evidence—Jury’s Finding of Fact—Conclusiveness.
    Where the evidence on a question of fact was conflicting, the finding of the jury will not be disturbed on appeal.
    Appeal from special term, Orange county.
    Action by James Thom against Charles Weber. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.
    Affirmed.
    Argued before GOODRICH, P. J., and CULLEN, BARTLETT, and HATCH, JJ.
    W. J. Foster, for appellant.
    A. H. F. Seeger, for respondent.
   GOODRICH, P. J.

The plaintiff, as agent of one Edward D. Pier-son, a dealer and shipper of milk, from Orange county to New York City, brings this action under section 29 of the domestic commerce law (5 Rev. St. [9th Ed.] p. 3518), to recover a penalty of $50 for the unlawful use of a milk can belonging to Pierson. The can was in use at premises on Amsterdam avenue, in the city of New York, where a Ferris Wheel was in operation, and was used to contain water to he supplied to the engines. The main question of fact was whether the can was being used by the defendant and his employés, or by his son and his employés. There was contradictory evidence tending to show the ownership and operation of the wheel, and the collection of entrance fees, both by the defendant and his son, as hearing upon the identification of the person using the can; so that the question was one clearly for the consideration of the jury, to whom the court submitted the subject, under a specific and proper direction. The finding of the jury was for the plaintiff, and is not to be disturbed.

Judgment and order affirmed, with costs. All concur.  