Dickinson v. Ensign — 31 N.Y. St. Rep. 651

Majority

p. 651

Thomas Dickinson et al., App’lts, v. Mary A. Ensign, Resp’t.^[1]

(Court of Appeals, Second Division,

Filed June 3, 1890.)

Headnote

Evidence—Credibility oe witness.

Defendant, a married woman, purchased jewelry, which was charged to her upon plaintiffs’ books; statements of account were rendered to her from lime to time, which she examined and on which she made payments. The referee found that defendant directed that the articles should be charged to her on the evidence of Elizabeth Dickinson and Sabina Fowler. The defendant denied this, and the general term reversed the findings of fact of the referee on the ground that they rested mainly on the evidence of Elizabeth Dickinson, who had verified a bill with the same items and presented it to the executor of defendant’s husband. Held, error; as the referee had found that it was so presented at the request of defendant.

(Parker and Brown, JJ., dissent.)

Appeal from judgment of the.superior court of' Buffalo, general term, reversing judgment in favor of plaintiffs and ordering •a new trial before another referee.

Truman C. White, for app’lts; George M. Osgoodsby, for resp’t.

The referee found that the articles, to recover the price of which the action was brought, were charged to the defendant on the plaintiff’s books. The books were before the referee and must have proved this fact beyond question. The referee found that the plaintiffs from time to time rendered statements of the account to the defendant, who examined, corrected them and made payments thereon. Mrs. Dickinson so testified, .and Alfred Dickinson, her son, so testified, and so did Miss

p. 652

Fowler. • Kate MeGrroder saw the accounts and talked with defendant about them. The defendant does not deny that she examined the accounts rendered in her name. The referee found that the defendant directed that the articles should be charged to her. Elizabeth Dickinson so testified and so did Sabina Fowler. This the defendant denied. The general term reversed the findings of fact upon the ground that they rested mainly on the evidence of Elizabeth Dickinson, who had verified an account containing the same items and presented it to the executor of Charles Ensign, the defendant’s deceased husband. The plaintiff testifies, and the referee found that this account was so presented at the request of the defendant.

I think that the referee’s findings were warranted by the evidence and that the order should be reversed and the judgment entered on the report of the referee should be affirmed, with costs.

All concur, except Parker and Brown, JJ., who dissent, and Haight, J., absent