This is an action brought to recover the sum of $180, claimed to be .due' for commissions earned by oneOppenheim in obtaining a loan of $18,000 upon the real estate of the defendant Levy, the claim having been assigned to the plaintiff. The testimony is conflicting upon the questions involved, and a cursory examination of the record might lead to the impression that the judgment was against the weight of evidence. A careful ex- > animation shows, however, that the witness Oppenheim, on whose testimony the plaintiff’s case depends, is supported by the probabilities, that, had he been informed on the 3d day of October, that Mrs. Levy had obtained the loan elsewhere, as testified to by her and Miss Hene, he would not have continued his negotiations with a reputable firm and completed all the necessary arrangements to obtain the loan.
The silence of the defendant Block as to his having already obtained the loan, when called upon by the witness Wainwright, on the 8th of October and asked by him if he had authorized Oppenheim to obtain the loan, is also significant. Uo motion was made at the close of the testimony for a dismissal of the complaint upon any ground, and a careful consideration of all the facts and circum*792stances of the case does not convince me that there is such a disregard of the weight of evidence'by the court below, as to warrant a disturbance of. the judgment. Weight of evidence- does -not consist in mere number of witnesses, and the decisions are very uniform to the effect that judgments will not be disturbed where there is a conflict of evidence, except in cases of palpable mistake, prejudice, passion or partiality, or unless the judgment is clearly and strongly -against the preponderance of evidence.
MacLeaw and Levektritt, JJ., concur.
Judgment affirmed, with costs to respondent*