Donohue v. Hammel — 17 N.Y. St. Rep. 996

Majority

p. 996

James Donohue, Resp’t, v. Charles Hammel, App’lt.

(Supreme Court, General Term, Third Department,

Filed May 17, 1888.)

Headnote

1. Trial—Evidence—What does not constitute a preponderance of EVIDENCE.

In an action to recover a balance claimed to be due for stone furnished

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defendant, the testimony of plaintiff was, that at the time of making the contract, he showed defendant a bill containing the price of the stone, and that defendant examined it and assented to it, that plaintiff afterwards' presented the hill to defendant, and asked him if he did not accept it at the time of making the purchase, and defendant answered, yes. This testimony was corroborated by other witnesses. Defendant as a witness denied all of plaintiff’s testimony, and introduced corroborating evidence. Held, that there is not shown such a preponderance of evidence in defendant’s favor as calls for a reversal of the judgment.

2. Mew trial—Misconduct of referee—When not grounds for.

On a trial before a referee an offer made by the referee, in the defendant’s presence (he making no objection) to protect the interest without pay in another action, wherein he was merely a nominal party, the referee being attorney for plaintiff’s son-in-law, who was one of the principal parties, is not sufficient ground for a new trial.

Appeal from a judgment entered upon a report of a referee, and from an order of the special term denying defendant’s motion to set aside judgment and for a new trial, on the ground that the referee was influenced against the defendant, and in favor of plaintiff as follows, viz.: The referee was and had been counsel for a son-in-law of plaintiff. Plaintiff had a mortgage on the land involved in the son-in-law’s controversy, but his claim was not disputed, except as to what part of the land should pay it. The amount due upon the mortgage was but fifty dollars. During the ref erence and in presence of defendant’s attorney, the referee told plaintiff that he need not employ a lawyer in the son-in-law’s action, as he would look after his interest without compensation, as he, plaintiff, was only a formal party, and had nothing at stake. The hearing proceeded, the defendant’s attorney making no objections. The motion was denied at special term.

John E. Van Etten, for app’lt; William Lounsbery, for resp’t.

This action was brought by the plaintiff to recover a balance claimed to be due him from the defendant, for a quantity of stone sold and delivered the defendant. The only question litigated, at the trial, was in regard to the price to be paid for the stone, the plaintiff insisting that the price was agreed upon, as stated in a printed bill, or list, which was exhibited to the defendant, at the time of the purchase of the stone, and examined and assented to, by him.

The plaintiff was examined as a witness in support of his claim, and produced other evidence in corroboration of his version in regard to the transaction. The plaintiff testified as follows: “ I then pulled out this bill, paper marked Ex. A. and showed it to him; and he looked at the face of the bill, and he agreed to pay what that called for, and then I called his attention to' the back, and he agreed to that) he agreed to pay me what that bill called for.” He

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further testified that on a subsequent occasion he presented the bill which contained the price of the stone to the defendant, and asked him, if he did not accept the bill at the time of the purchase, and that the defendant answered yes.

The defendant testified at the trial, and denied that any specific price for the stone, was agreed upon at the time of the purchase, and testified that no bill or list was exhibited to him, containing price. He also denied, that he subsequently acknowledged that, at the time of the purchase of the stone, he accepted the bill of price, as testified to by the plaintiff. The defendant produced further evidence in support of his testimony

Upon all the facts, the learned referee found in favor of the plaintiff. The evidence was conflicting, and he was called upon to weigh the same, and to draw inferences therefrom, which he was entirely competent to do. And we are satisfied that he performed the duty faithfully and intelligently.

There is not shown such a preponderance of evidence in favor of the defendant’s case as calls for a reversal of the judgment. Cheney v N Y C. and H. R. R. R. Co., 16 Hun, 415 , 420. Again we do not perceive that the case contains a statement that all the evidence produced at the trial had been returned, which is necessary, when a judgment is sought to be reversed upon the facts. Porter v. Smith, 107 N. Y., 531 ; 12 N. Y. State Rep., 479.

In regard to the appeal, from the order of the special term, we have examined the affidavits, in regard to the connection of the referee, with the McAulif controversy, in which the plaintiff had some interest, and fail to discover ground for even a reasonable suspicion that he could have been influenced, in the slightest degree, adversely to the defendant, or his case, or favorably to the plaintiff. Indeed, the counsel for the appellant in his points substantially furnishes an answer to the objection which he makes to the referee on that account.

We are convinced that the case has been fairly tried, and correctly decided, and that the judgment and order should be affirmed, with costs.

Landon, J., concurs.