Preston v. Arthur — 120 A.D. 94

Majority

p. 94

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. 4.)

First Department,

June 7, 1907.

Headnote

See head note in Preston v. Atbee, 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 ón the 18th day.óf December, 1906, upon the report- of a referee.

Charles W. Dayton, Jr., for the appellant;

p. 95

Alexander Thain, [Helen Arthur with him on the brief], for the respondent Arthur.

Samuel R. Taylor of counsel [C. R. & G. F. Allison, attorneys], for the respondents Albee.

This action was tried before the same refere'e and at the same time as actions Nos. 2 and 3^[1] , opinions wherein are herewith handed ¡down, and presented' the same general features, the mortgage foreclosed being upon a house, adjacent to the two covered by the former actions. -

In this case the referee excluded all the documentary evidence and made similar findings to those considered in the two prior cases, including the finding as to the appointment and qualification of ■ Preston as receiver, the evidence to establish which he had excluded.

This judgment must also be reversed and a new trial ordered before another referee, with costs to the appellant to abide the event.

Ingba-ham, Lahghlin, Scott and Lambert, JJ., concurred.

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

* Preston v. Albee, No. 2 ( 120 App. Div. 89 ); Preston v. Arthur, No. 3 (Id. 93)—[Rep.