Smith v. Kobbe — 59 Barb. 289

Majority

p. 289

Smith vs. Kobbe and others.

Headnote

It is erroneous for a referee to receive and act upon the testimony of a nonprofessional witness as to the value of the plaintiff’s services as a lawyer, after he has stated that he knows nothing of their value.

A referee should pass upon objections to evidence, as they arise. It is error for him to reserve his rulings upon the questions arising, and objections made, until the final submission of the case, and then decide the case as though there had been no objections to any portion of the evidence.

APPEAL by the defendants from a judgment entered upon the report of a referee. The action was brought by the plaintiff' to recover for professional services as an attorney and counsellor. The referee allowed the whole amount of the plaintiff’s claim.

p. 290

[First Department, General Term, at New York,

April 4, 1871.

D. McMahon, for the appellants.

DuBois Smith, respondent, in person.

The referee erred in permitting Mr. Gerding to testify as to the value of the plaintiff’s claim and services as a lawyer. He stated that he knew nothing of their value, and yet the referee received his testimony, and acted upon it in making up his report.

The referee not only erred in the admission and rejection of much of the testimony, but refused to pass upon many other questions and answers. He seems to have reserved his rulings upon nearly all of the questions and objections until the final submission of the case, and then decided the case as though there had been no objections .to any portion of the evidence.

I think the decision- is wrong, and should be reversed, costs to abide the event of the action, and. the present order of reference to be vacated.

Order to be settled by Judge Barnard.

Ingraham P. J., and Geo.