
    Herman Tolk, Respondent, v. Harris Lapin, Appellant.
    Appeal from a judgment rendered in the District Court of the city of Hew York for the fifth judicial district.
    Action for conversion. Defense, general denial and counterclaim.
    
      Alexander Finelite, for appellant.
    
      A. & L. Levy, for respondent.
   Bookstaver, J.

On the trial it appeared that in March, 1893, the parties entered into an agreement whereby the plaintiff was to deliver to the defendant beer, soda and seltzer, and the defendant to be charged therefor by the plaintiff at a certain amount, and the profits over and above the amount so charged were to he divided between them. There is little or no difference between the parties as to the quantity and value of the goods delivered under this agreement, save in one respect, as to the small boxes of beer, where the plaintiff made a miscalculation, which was corrected and the amount agreed upon at the trial. The chief differences between the parties are as to the amount of money paid by the defendant to the plaintiff and the quantity of syphons and bottles returned by him. Plaintiff claimed that the defendant paid him only $1,'780.19, while defendant claimed that he had paid the sum of $1,892.41, making a difference of $112.22. To substantiate this claim defendant produced a passbook, in which the plaintiff entered the moneys as received, which foot up the amount claimed by the defendant. In explanation of this the plaintiff testified that the defendant not having the book with him at the time of the payments, he entered some of the items on defendant’s statements, which were incorrect, and that he also entered with the moneys received the commissions which were to be allowed the defendant, thus making the difference; and in this he seems to be substantiated, because it is unlikely that the defendant would have paid him the various odd cents which are credited if he had merely handed him money. As to the contention that the soda was paid for as received, the evidence is very contradictory. And this is also true of the testimony in regard to the number of bottles returned. The justice who tried the case, having the witnesses before him, could better judge from the manner in which the testimony was given, and the surrounding circumstances, than we can do, and, in the absence of passion, prejudice, mistake or oversight being shown, we think the judgment should be affirmed, with costs.

Bischoff, J., concurs.

Judgment affirmed, with costs.  