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Preston v. Arthur

120 A.D. 93 Court First Department, Decision date 1907-06-07 English

Delivered by Clarke, J.:

Contents

Majority

p. 93
Charles M. Preston, as Receiver of the New York Building Loan Banking Company, Appellant, v. Mary E. Arthur and Others, Respondents, Impleaded with Lemuel J. Arthur and Others, Defendants. (Action No. 3.)
First Department,
June 7, 1907.

Headnote

See head note in Preston v. Albee, No. 2 (ante, p. 89).
Appeal by the plaintiff, Charles M. Preston, as receiver, etc., from a judgment of the Supreme Court in favor of the defendants Albee, entered in the office of the clerk -of the county of New York on the 16th day of December, 1906, upon the report of a referee.
Charles W. Dayton, Jr., for the appellant.
Alexander Thain [Helen Arthur with him on the brief], for the respondent Arthur.
Samuel P. Taylor of counsel [C.R. & G.F. Allison, attorneys], for the respondents Albee.

This case was tried before the same referee and at the same' time as that of Preston v. Albee, No. 2 ( 120 App. Div. 89 ), opinion filed herewith, and presented-the same character of case, the mortgage in suit being upon the house adjacent to the premises- under foreclosure in action Ho. 2.

In action Ho. 2 the referee admitted- all the. documentary evidence and then dismissed the complaint. In the case under con

p. 94
sideration he excluded all of the documentary evidence, including the mortgage sued on, although acknowledged and recorded, and the bond, although executed and acknowledged, the only.document which he did- r'eceive being a copy of the articles of incorporation of the company. All.of this, evidence having been excluded, the plaintiff rested, whereupon the referee dismissed tli.e complaint -and made findings of fa'ct which .Were identical with those made by him in action No. 2.' He found, however, “ that the plaintiff duly establishéd by proof thé appointment ánd qualification of Charles M.. Preston as receiver of the New York Building-Loan- Banking Company,” although he had excluded, the certified copy of .the-judgment against the company .appointing Preston receiver, and a certified copy of the bond given.by Preston as such-receiver.

. Such a judgment cannot- stand. -I-t is, therefore, reversed and a new trial ordered before another referee, with costs to the appellant to abide the. event! . - : -

Ingraham, Laughlin, Scott and Lambert, JJ., concurred.

Judgment, reversed-, new trial' ordered before anothér referee, costs to appellant to abide event. Settle order on notice.

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