Majority
p. 37(120 App. Div. 94) PRESTON v. ARTHUR et al. (No. 4.) (Supreme Court, Appellate Division, First Department. June 7, 1907.) Argued before INGRAHAM, LAUGHLIN, CLARICE, SCOTT, and LAMBERT, JJ.
Headnote
Appeal from Judgment on Report of Referee. -Action by Charles M. Preston, as receiver of the New York Building Loan Banking Company, against Mary E. Arthur and others. From a judgment entered on the report of a referee, dismissing the complaint, plaintiff appeals.
Reversed, and new trial ordered.
Charles W. Dayton, Jr., for appellant.
Alexander Thain (Plelen Arthur, on the brief), for respondent Arthur.
C. R. & G. E. Allison (Samuel R. Taylor, of counsel), for respondents Albee.
This action was tried before the same referee and at the same time as actions Nos. 2 and 3, opinions wherein are herewith handed down ( 105 N. Y. Supp. 33 , 36) and presented the same general features; the mortgage being 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 and1 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. All concur.