
    NEW YORK COMMON PLEAS.
    Fisher agt. Merwin and Bray.
    A motion for a reargument of an appeal will not be granted where there was a conflict of evidence—the plaintiff and defendant being the only witnesses—in the court below, upon which the verdict and judgment were rendered.
    
      General Term,
    July, 1863.
    
    
      Before Judges Daly, Brady" and Hilton.
   Bj-" the court, Brady, J.

A motion to reargue this appeal was made upon the ground that the judgment was excessive, as appeared by the undisputed evidence in the case. The number of pistols sold at $22.50 was 120, and the amount of the whole purchase was $2,700. The defendant Merwin swore that be had paid on account the sum of $2,579, which would leave a balance due of $121; but the plaintiff testified that there was a balance due of $249.75, and he was not asked anything about his account on the cross-examination. The jury believed his statement. The conflict between him and the defendant Merwin was a statement by the former that the sum of $249.75 ivas the balance due, and one by the latter that he had paid $2,579 on account, neither of them making further proof on the subject. The evidence being in conflict, we cannot disturb the finding, and the ground upon which the motion to re-argue was made is not established as a feature in the controversy. Motion denied, with $10 costs.  