Abbott v. Thomas — 25 N.Y. St. Rep. 157

Majority

p. 157

George B. Abbott, as Administrator, etc., App’lt, v. Margaret J. Thomas, as Executrix, etc., et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed June 28, 1889.)

Headnote

Referee—Findings—Certificate.

A referee is justified in refusing to certify that a brief abstract contains all the evidence on the trial given in support of the findings of fact to which exceptions are taken, where it plainly appears that such is not the fact.

Appeal from an order denying a motion to resettle case on appeal, and refusing to send it back to the referee for resettlement.

,Barnett & Whitney, for app’lt; Dean & Chamberlain {Cephas Brainard, Jr., of counsel), for resp’ts.

Upon the trial of the issue before the referee, a large mass of testimony was taken. The referee made thirty-four findings of fact, and, therefore, dismissed the complaint, with costs. The plaintiff excepted to the fourth finding, which was that George M. Chapin was the agent of Eunice Chapin “in all matters and things referred to in this action.” This exception is applied so far as respects this agency to the fifteenth, nineteenth, twentieth, twenty-third, twenty-fourth, twenty-fifth, twenty-sixth and the fifth finding. An exception is also taken to the twenty-eighth finding. The case as proposed is an abstract of

p. 158

some six folios. The referee refused to insert in it that it contained all the evidence given in support of the findings of fact to which exceptions are taken. The plaintiff’s attorney swears that this abstract contains the scope of the case. The defendant’s attorney makes an affidavit that the greater part of the evidence to sustain the finding is omitted. The evidence actually given is not presented. It is for the referee to settle the case, and upon this paper the inference is plain that he is right in withholding his official certificate that the case contains all the evidence in support of the findings.

From our knowledge of the trial of cases, it is evident that the abstract should not be deemed to contain all the ■evidence. The referee did right in refusing to exercise so dangerous a power as to determine that the brief abstract represented all the evidence on the trial in support of the findings in question.

Order affirmed, with costs and disbursements, and motion denied, with ten dollars costs.

All concur.