Opinion
February, 1899.
Seaman Miller, for appellant.
Denman Denman, for respondent.
The testimony in the case is very voluminous and we have given it careful examination. There is a sharp conflict of testimony upon all the main questions involved, which makes them questions of fact for the trial court to pass upon.
"The decision of a District Court justice rendered upon conflicting evidence, will not be disturbed in the absence of proof of partiality, prejudice or bias." Conklin v. Thompson, 29 Barb. 218; Fuerst v. Jacobson, 9 Misc. 694; 29 N.Y.S. 54; or it is clear that injustice has been done. Mitchell Vance Co. v. Daiker, 46 N.Y. St. Repr. 189; or unless the evidence be of such a convincing character as to lead to the conclusion that the justice has neglected, through mistake, to deliberate upon the whole testimony. May v. Meierdierck, 42 N.Y. St. Repr. 469. Nothing of the kind appears in this case. Considerable stress is laid by the appellant upon the exclusion of testimony, by the trial judge, tending to show that the boilers in question leaked and were defective, because of faulty construction and defective material. The testimony offered upon that point would have been competent had it been shown by the testimony in the case that the boilers were in the same condition when they were examined by the expert witness as they were at the time they were delivered to the defendant. No such testimony appears in the record, nor does it appear that any such testimony was offered. In the absence of such testimony it was not reversible error to exclude the testimony referred to.
MacLEAN and LEVENTRITT, JJ., concur.
Judgment affirmed, with costs.