Hoffman v. Duncan — 27 N.Y.S. 658

Majority

p. 658

HOFFMAN v. DUNCAN.

(Supreme Court, General Term, Second Department.

February 12, 1904.)

Headnote

Appeal—Review—Weight oe Evidence.

Finding of a referee on conflicting evidence will not be disturbed on appeal.

Appeal from judgment on report of referee.

Action by William Hoffman against Lawrence Duncan, as administrator of Ann Duncan, deceased, to recover $2,505, as a balance of wages alleged to be due to plaintiff as general workman and farm hand for defendant’s intestate. The complaint was dismissed on the merits, and plaintiff appeals. Affirmed.

Argued before DYKMAN, PBATT, and CULLEN, JJ.

Daniel Brown, for appellant.

Henry A. Monfort, (David B. Simpson, of counsel,) for respondent.

This is an appeal from a judgment entered upon a report of a referee. The case really involves only questions of fact. It is true there are a large number of exceptions to rulings made upon the trial, but I cannot see that any evidence was excluded or admitted, against objection, that could have changed the result. Here was an old lady, who had long lived upon the farm,' living with her son, who carried it on, and was engaged in the milk business, and who, so far as appears, did all the business, and received and paid out all the money. He and his mother, the deceased, were joint tenants, and were probably jointly interested in carrying on the farm; but that the plaintiff looked to the son, William, for pay for his services, and was paid by him, seems quite clear, from all the facts and circumstances of the case. Whenever either 'the son or mother paid any money, it must have been for the accrued wages; and the fact that the plaintiff declared that William, the son, did not owe him anything, furnishes a high degree of proof that nothing was due him at that time for wages. It is highly unreasonable that the intestate ever made a separate contract with the plaintiff for her private benefit, and all the evidence goes to show that plaintiff was almost altogether employed in active work upon the farm and

p. 659

in the milk business. Nothing would be more natural than for an old lady situated as was the intestate to ask the hired man to do some little chore or errand about the house, but that does not prove an employment by the intestate. The plaintiff was a mere boy when he went to live on this farm, and his board and clothing were almost a fair compensation for his services for some years thereafter. I think it highly probable that he received his pay from William as he continued to work. Indeed, he said William had acted as a father towards him, and had paid him in full. At all events, there is not such a preponderance of evidence in favor of the plaintiff as will warrant us in reversing the judgment. The referee saw the witnesses, and heard them testify, and was in a situation to judge of their credibility better than an appellate court. Assuming that plaintiff was employed by them jointly, I think the fair inference from the proofs is that he was paid in full for all services rendered by him. After a careful reading of the whole case, we are constrained to believe the decision of the referee was right, and must be affirmed, with costs. All concur.