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Lyman v. Perlmutter

62 N.Y.S. 866 Court N.Y. App. Div. Decision date 1900-03-06 English

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p. 866
LYMAN v. PERLMUTTER et al.
(Supreme Court, Appellate Division, Second Department.
March 6, 1900.)

Headnote

Appeal—Referee’s Findings.
The supreme court cannot disturb a referee’s findings of fact based on contradictory evidence, when it is sufficient to support them.
Appeal from judgment on report of referee.
Action by Henry H. Lyman, as state commissioner of excise of the state of New York, against Edward Perlmutter and the Fidelity
p. 867
& Deposit 'Company of Maryland. From a judgment entered on a referee’s report, the defendant Fidelity & Deposit Company of Maryland appeals.
Affirmed.
Argued before GOODRICH, P. J., and BARTLETT, HATCH, WOODWARD, and HIRSCHBERG, JJ.
James R. Soley, for appellant.
P. W. Cullinan, for respondent.

We have been addressed by an argument which asks us to overrule the decisions of the supreme court in the First and Fourth departments. Lyman v. Insurance Co., 37 App. Div. 234 , 55 N. Y. Supp. 770 ; Same v. Brucker, 26 Misc. Rep. 594 , 56 N. Y. Supp. 767 , affirmed on appeal in 42 App. Div. 624 , 61 N. Y. Supp. 1141 ; Same v. Club, 39 App. Div. 459 , 57 N. Y. Supp. 372 . The argument of the learned counsel for the appellant in support of his contention is forcible and able, but all of the views therein taken seem to have been met and answered by the decisions already rendered; and, if we were doubtful of the correctness of such answer, its overthrow, if it be overthrown, must properly come from the court of last resort. The evidence in the case is conflicting, and that adopted by the referee is not only contradicted, but in many respects contradictory, nevertheless there was clearly sufficient for him to render the judgment appealed from, and this court is powerless to interfere. Baird v. Mayor, etc., 96 N. Y. 567 . The judgment should therefore be affirmed.

Judgment affirmed, with costs.

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