
    Marks Silver, Respondent, v. Joseph Elias, Appellant.
    Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city-of New York, fifth district, borough of Manhattan.
    Shafer & Levin, for appellant.
    Ralph Nathan, for respondent.
   Per Curiam.

A former judgment in favor of the plaintiff was-set aside by the Appellate Term because against the weight of' evidence. If the evidence on the present trial had been the same as that on the former we might adopt a like course. There-is, however, an important difference. It was testified by an apparently disinterested witness that the note in suit was brought, to Kkplan, the payee, by one Cohen, the manager of defendant’s, business. On the former trial Cohen was called and denied that, he had ever seen the note, that it was given him by defendant, or was delivered to Kaplan. On the present trial Cohen was not called, and consequently the evidence of the delivery of the-note to Kaplan was uncontradieted. We have examined the exceptions and find none that call for a reversal, and under all the-circumstances are not disposed to interfere with the second judgment.

Present: Scott, P. J., Beach and Fitzgerald, JJ.

Judgment affirmed, with costs.  