Conboy v. Cunningham — 24 N.Y.S. 75

Majority

p. 75

(70 Hun, 600;

mem. report without opinion.)

CONBOY v. CUNNINGHAM et al.

(Supreme Court, General Term, Third Department.

July 8, 1893.)

Headnote

Findings of Referee—Sufficiency of Evidence.

Though the evidence to sustain the findings of a referee in starting an account is unsatisfactory, such findings will not be disturbed on appeal, where there is no reason for believing that the appellate court could reach a more satisfactory conclusion.

Appeal from judgment on report of referee.

Action by Michael P. Conboy against Mary Cunningham, Edward Cunningham, (her husband,) Bridget Conboy, Agnes Conboy, .Theresa Conboy, Egbert W. Lansing, the Mechanics’ Savings Bank, James Lester, Ellen Gerdect, Edward Hanlon, Thomas Dowd, Thomas Holihan, Jean Demers, David Saylor, Thomas Hanlon, and John Perry, for the partition of certain land. From an interlocutory judgment ascertaining the respective rights, shares, and interests of the par

p. 76

ties to the property in suit, and ordering a sale of such property, defendant Mary Cunningham appeals.

Affirmed.

Argued before MA.YTTAM, P. J., and PUTNAM and HERRICK, JJ.

Henry A. Strong, for appellant.

Doyle & Fitts, (Charles F. Doyle, of counsel,) for respondent.

The alleged errors sought to be reviewed upon this appeal are those claimed to have been made by the referee in making and stating the accounts between the parties for rents collected, and commissions charged for their collection, and for moneys disbursed. The action is for a partition of land of which the parties were tenants in common. The alleged errors are errors of fact. The evidence as to rents collected and moneys paid out is not entirely satisfactory, but the referee had the witnesses before him in person, and heard their statements as to the manner in which they made out their accounts. I see no reason for believing that we could reach a conclusion any more satisfactory than the one at which he has arrived. Judgment should be affirmed, with costs of this appeal to be deducted from the share of the appellant in the proceeds of sale. All concur.