
    Jacob Burkhard, Respondent, v. The George Hagemeyer & Sons’ Lumber Co., Appellant.
    (Supreme Court, Appellate Term,
    March, 1898.)
    Appeal — Affirmance on a conflict o£ evidence.
    Where the evidence upon the question, whether certain teams were ■furnished hy the plaintiff to the defendant or whether they were furnished to a third person, is conflicting and evenly balanced, the judgment of the trial court must be affirmed.
    Appeal by the defendant from a judgment of the District Court in the City of Hew York, for the eleventh judicial district, rendered in favor of the plaintiff by the justice thereof, without a jury. The nature of the action and the material facts, are stated in the opinion.
    Richard B. Kelly (W. C. Beecher, of counsel), for appellant.
    Lewis S. Goebel, for respondent.
   Giegerich, J.

This action was brought to recover the sum of $172.50, claimed to be due plaintiff for horses, harness and drivers furnished to the defendant, at its request, during the month of April, 1897, The issues in the action were joined by written complaint and answer, the latter containing a general denial. The substantial question of fact litigated upon the trial was, whether or not the horses were furnished to the defendant. The plaintiff claimed that they were, while the defendant denies having hired or used them, insisting that the same were furnished to one August K. Kaufold upon his request. There was sufficient evidence in the case to support a finding either way, and the justice having found for the plaintiff upon a conflict of evidence, we should not disturb his conclusion. Lynes v. Hickey, 4 Misc. Rep. 522.

We have examined with great care the exceptions taken at the trial to rulings respecting the admissibility of evidence and fail to discover the existence of any substantial error which would require the reversal of the judgment.

The judgment should, therefore, be affirmed, with costs.

Beekmah, P. J., and Gildersleeve, J., concur.

Judgment affirmed, with costs.  