Ramsey v. Phillips

SEABURY, J. This is an action to recover for services rendered. The case was tried before the court without a jury. The appeal presents no question of law, not a single exception having been taken by the defendant, nor was any motion made to dismiss the complaint. The judgment is challenged solely upon the ground that it is against the weight of evidence. The court below, in whose presence the witnesses gave their testimony, was much better able to judge of the credibility of the witnesses than are the justices of this court, who have only the typewritten record before them. I can discover no good reason why we should substitute our judgment upon the facts for that of the learned trial judge. 'After the time had expired within which the defendant had a right to move for a new trial, the defendant made such a motion. The defendant also moved to set aside the judgment upon the ground of newly discovered evidence. This motion, not being made upon a settled case, was properly denied. Section ¿54, Municipal Court Act; Altmark et al. v. Haimowitz, 55 Misc. Rep. 195, 105 N. Y. Supp. 205. The judgment and order should be affirmed, with costs. BIJUR, J., concurs.