Rifenburgh v. Ham — 60 N.Y.S. 124

Majority

p. 124

RIFENBURGH v. HAM.

(Supreme Court, Appellate Division, Second Department.

October 3, 1899.)

Headnote

Services in Sale of Land — Judgment on Referee’s Report — Review — Amendment of Pleading.

A judgment for plaintiff entered on the report of a referee in an action for services in the sale of a farm, in which the pleadings alleged a contract to pay a certain sum per acre, will not be reversed because the referee found for a smaller sum, based on' a different calculation,—the amount found not being excessive, and it being conceded that he was entitled to some compensation,—but the pleadings must be deemed to have been amended to conform to the facts established by the evidence.

Appeal from judgment on report of referee.

Action by Peter Rifenburgh against Caroline Ham for services, under an express contract, in the sale of her farm. From a judgment entered in favor of plaintiff on the report of a referee, defendant appeals.

Affirmed.

Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.

Daniel W. Guernsey, for appellant.

J. L. Williams, for respondent.

The issue presented in this case is purely one of fact, and the referee having found in favor of the plaintiff, upon a conflict of evidence, there appears no good reason why the judgment should be disturbed. It is conceded that the services of the plaintiff in disposing of defendant’s farm were rendered, that the farm was sold pursuant to the negotiations made by the plaintiff, and that there was an agreement, either expressed/or clearly implied, that he should be compensated for his services. The referee has found that the

p. 125

services of the plaintiff were worth $200; and while the pleadings allege a contract to pay a certain sum per acre, amounting to much more than the referee has found, the finding of the referee for a smaller sum, based upon a different calculation, does not justify this court in reversing the judgment, and the pleadings may be deemed to'have been amended to conform to the facts as established by the evidence. Whether the plaintiff’s contract was for a certain sum per acre of the property disposed of, or whether his compensation was to be measured by a certain per cent, of the amount realized, or whether he was to have a reasonable amount for his services, is not very material. That he was entitled to compensation is clear, and, the amount fixed by the referee not being excessive, the judgment should be affirmed, with costs.