Van Bokkelein v. Berdell — 3 N.Y.S. 333

Majority

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Van Bokkelein v. Berdell.

(Supreme Court, General Term, Second Department.

December 13,1888.)

Headnote

1. Appeal—Review—Weight op Evidence—Decision op Referee.

Where the evidence before a referee as to the validity of an item of credit is conflicting, the question of the correctness of his decision cannot be reviewed on appeal.

2. Partnership—Accounting—-Evidence—Firm Books—Single Entry.

On accounting between partners, plaintiff claimed credit for a certain real-estate transaction, and defendant denied the item. On cross-examination an entry was • shown him in the partnership books supposed to be at variance with his denial. Meld, that plaintiff had a right to introduce the single entry relating to this item, and that he could not be compelled to put the whole book in evidence.

8. Witness—Impeachment—Harmless Error.

Evidence was given tending to impeach defendant, and he was asked if he had’ not been indicted for perjury, and if certain suits had not been decided against him. He admitted the indictment, and denied the result of the suits as claimed. Meld,, that the evidence was harmless.

4. Same—Hostility op Impeaching Witnesses.

After the impeaching evidence was in, defendant testified that there was much. ill feeling between him and certain of the impeaching witnesses,—as to one of them,.

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that a false report had been circulated that defendant had slandered his daughter; • also that he had slandered other girls; and that these false reports had created bitter feeling in the vicinity. Held, that it was proper to ask him on cross-examination if he had not also been charged with having committed adultery with a girl there.

Appeal from special term, Kings county.

Action for settlement of partnership accounts after dissolution, brought by .Spencer D. C. Van Bokkelein against Robert H. Berdell. There was a reference to John L. Lawrence, who made a report which the court confirmed, and .a re-reference was ordered for further accounting in conformity with the findings of that report. Lawrence died before making his second report, and Horatio 0. King was appointed to take the accounts. His report found a baljanee in favor of plaintiff of $10,369.49. The report was confirmed, and defendant appeals. His chief complaint is that the referee (King) erred in not .allowing him a credit of $3,5Í6.65, as to which credit there was a great conflict of evidence, plaintiff contending that the entries relating thereto were false and fraudulent, made on a false and pretended sale. Evidence was offered before the referee, tending to impeach defendant’s reputation for truth .and veracity. Defendant then testified that certain of the witnesses who had sworn they would not believe him under oath were personally hostile to him; that one witness, living in Goshen, had a daughter, whom it was falsely reported that defendant had slandered; that similar reports had been circulated .accusing him of having slandered several other girls in Goshen; and that the community were divided into factions on the question of the truth of these reports. Plaintiff’s counsel was allowed to ask him on cross-examination if he had not also been charged with having committed adultery with a girl in Goshen.

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

Herman Aaron, (Philip L. Wilson, of counsel,) for appellant. Nathaniel Niles, ( W. W. Niles, of counsel,) for respondent.

The basis upon which the accounting is taken is not open •to dispute. It was settled by the interlocutory decree, and the decree by stipulation is not appealed from, and no claim is to be made that it should b'e set aside. The only question, therefore, is as to accuracy of the accounting upon ■the principles settled by that decree. The first question presented is whether the referee erred in failing to credit $3,516.65. This question was of serious moment upon the hearing preliminary to the first decree: The decree of necessity falsified the evidence in support of this item. The title to the property depended upon this finding against the entry; in support of it depends the title ,of the property as determined by the interlocutory decree. Upon the present hearing there is a violent dispute between the parties. The plaintiff asserts the falsity of the books made by defendant, and denies the fact as to the indebtedness claimed by defendant. There is no rule which will permit an appellate court to reverse upon this question. As to the Dean-Street mortgage, the evidence seems to show that the first mortgages were taken up by new ones, and these are-considered. The case does not show that any material evidence as to payment by defendant vvas excluded because there were no vouchers. The payments, and to whom made, wereadmitted. Theloss of the vouchers was not proven, and no attempt was made to prove their contents. The refusal to receive the checks given to Sage was not harmful. It did not show anything beyond the fact of payment, which defendant testified to. The charge for rents is based upon sufficient evidence in favor of it. This subject was the occasion of very conflicting evidence, but the weight of it is in favor of the finding. The Cincinnati property was adjudged by the first decree to be joint property. The plaintiff testified that there was due him on account thereof $3,397.40. The referee allowed less than that $3,516.66. Thedefendant denied the it.em wholly, and upon cross-examination an entry was shown

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him in the books which was supposed to be at variance with this denial. It was proper to admit this single entry, and there was no legal right to compel the plaintiff in such connections to put in the whole body of the books of account. There was given on the trial evidence tending to impeach the defendant, and he was asked if he was not indicted for perjury,—if certain suits had not been decided against him. He admitted the indictment, and denied the result of the actions as claimed. The evidence was harmless. The question put to the defendant about some girl in Goshen was proper on cross-examination. He had excused or mitigated certain facts which made this inquiry permissible on cross-examination. The judgment should be affirmed, with costs. All concur.