
    Hebbert E. Hawes, Respondent, v. Abram V. Whiteman, Appellant.
    (New York Common Pleas
    Additional General Term,
    January, 1895.
    Positive testimony that a machine will perform the work called for by the contract is not overcome by testimony to the contrary by one not accustomed to the machine, or who is shown to be an incompetent workman.
    Appeal from the District Court in the city of New York for the first judicial district.
    
      Fernando Solinger, for appellant.
    
      Walter D. Fdmonds, for respondent.
   Per Ouriam.

No sufficient reason appears for reversing this judgment.

The plaintiff testified positively that he had made three coils per minute — the number the contract called for— upon the machine before it was delivered.

On the other hand, the defendant’s witness, Washburn, testified that he could make only about one per minute. The plaintiff claims he was not a competent workman, and had not operated the machine long enough to acquire dexterity and speed, which seems reasonable, as it is conceded that only 720 coils were made in all, which would be only about twelve hours’ work at the rate of one coil per mihute. This fact also reflects upon the credibility of Washburn, who testified that he “ worked at it steadily all day for two or three weeks.”

Besides, it is undisputed that owing to Washburn’s inability to see clearly the progress of the wire in the machine and to check the revolution at the proper point, an automatic stop was put on, which necessitated a reversal each time a coil was made, and thereby increased the time required.

It is to be inferred that this same contrivance was still upon the machine when Lauer made his trial, although there is no direct evidence upon the point.

Judgment affirmed, with costs.

Present: Bookstaveb and Bisohoef, JJ.

Judgment affirmed, with costs.  