This'action was brought to recover'the "siirii of ■$157.75, alleged to be due for goods’ sold and delivered" to the defendant. -The pleadings are in writing. The answer denies ’that the goods were sold,' and alleges that they were delivered oh *736memorandum- and remained the property of the plaintiff,- to. 'be paid for by the defendant when sold, or, if not sold, to be returned, and that in accordance with that agreement, the defendant did return to the plaintiff goods to the value of “ eighty odd dollars.”
At the trial there was a sharp conflict of evidence upon the is- ' sues of fact thus raised, and the justice, in rendering judgment for the defendant, decided, “ that the goods were not sold, but were delivered on meinorandum, remaining the property of the plaintiff, to be paid for by defendant when sold, and if not sold to: be returned by defendant to. plaintiff; ” and he further held that, although the defendant' was indebted to the plaintiff in the sum of $25 or thereabouts, the proceeds of other sales, that that could not be recovered in the present form of action because no. sale of the goods had taken _place, they being merely left upon the conditions before stated.
■ Plaintiff claims, substantially, that -the judgment is against the weight of evidence, yet a careful perusal of the record justifies us in the contrary conclusion. The agreement, under, which the defendant, claims the goods were, left with him on memorandum, was proven not alone by his own testimony, but by that of two additional witnesses. Certainly the entire oral- and documentary evidence respecting the alleged spoliation of the $35 check, given by the defendant to the plaintiff in part payment for goods sold under said agreement, should be considered by the justice as a circumstance, at least in determining the weight of conflicting testimony upon the main issues of fact in the case. ■ The mere fact that three witnesses testified that the words “ acc. on mem.” were not upon the check "when it was delivered to plaintiff," as against the' defendant’s own testimony, in diametrical .opposition thereto, is" not, as claimed by the plaintiff, a manifest indication that the justice neglected to deliberate upon the whole testimony. The .justice, having had the witnesses before him, was undoubtedly better able to judge of their credibility and of the weight to be given to their testimony than is this appellate.-court, and hence we-see no reason for disturbing 'his conclusion, in the absence of the elements which are requisite to a review of the facts. Lynes v. Hickey, 4 Misc. Rep. 522.
Plaintiff nlso claims to have been taken by surprise by the altered condition of the.check presented upon the trial, and new asserts his ability to establish by expert testimony that the words in question were written in the body of the check after it had *737been punctured or file-marked by the bank upon which it was drawn. A close scrutiny of the record, however, fails to show that the plaintiff pleaded surprise, or requested an adjournment to procure expert testimony; on the contrary, it clearly appears that he elected to proceed with the trial, that he and two other witnesses called by him testified as to the condition of the check, and that he then submitted the case to the justice. He thereby took the hazard of a trial, hoping, no doubt, that the justice would not bfelieve the defendant’s story regarding the check, and now, that the issues have been decided adversely to him, he applies to this court for relief.
Even aside from the question of .our power to grant the relief asked, we think that under the circumstances a new trial should not be granted for the reasons already mentioned. The justice having found that there was no sale of the goods, his conclusion as to the remedy, to recover the balance of the moneys in defendant’s hands, is in all respects correct.
The judgment, should, therefore, be affirmed, with costs.
Beekman, P. J., and Gildersleeve, J., concur.
Judgment affirmed, with costs.