Hagerdorn v. Dodge — 2 N.Y. St. Rep. 335

Majority

p. 335

Chauncer Hagerdorn, respondent, v. Alfred C. Dodge, Jr., appellant.

(Supreme Court, General Term, Fifth Department,

Filed June 17, 1886).

Headnote

Appeal—Reeeree-Eiitoiw oe facts.

Upon an appeal from a judgment entered upon a 'referee’s report the general term will not review the conclusion of fact found unless it appears by the record presented on appeal that all the evidence upon which the referee acted is before the court.

Appeal from a judgment in the plaintiff’s favor, entered upon the report of a referee, for the sum of $55.25 damages and $65.39 costs. The parties entered into a paroi agreement by which the plaintiff agreed to construct for the defendant shelves, drawers, a counter and table for his store, at the fixed and agreed price of $250, in accordance Avith a design or plan then made, the defendant agreeing to supply a portion of the material at a fixed and an agreed price, and the work to be done and completed by a particular day. The plaintiff did not do the work as agreed upon Avithin the time mentioned, and the referee so found. On the trial the plaintiff contended that by an oral arrangement he wag

p. 336

released from a performance of a part of the contract, and the terms were otherwise modified.

E. W. Packard, for appellant; Dagett & Norton, for respondent.

Upon the facts as found by the referee, and specifically set forth in his report, the plaintiff was entitled to a judgment for the amount of the recovery awarded. There is evidence fairly tending to support all the conclusions of fact contended for by the plaintiff.

The appellant now insists that the findings as to the modification of the contract are contrary to the weight of evidence. The case does not state that all the evidence given on the trial is set forth therein, and for that reason we cannot review the findings of fact, as there is some evidence supporting the conclusions of the referee. While this court has the power to review the conclusions of a referee upon questions of fact, it must appear by the record presented on appeal that all the evidence upon which the referee acted is before us. Otherwise we cannot say that his conclusions are mistaken and against the weight of evidence. We so held in Spencer v. Chambers, decided in January, 1886, ( 39 Hun, 193 ).

Judgment affirmed with costs.