Majority
Headnote
Appeal—Reference.This action, brought for an accounting between co-partners, was tried before a referee, who stated the account on the basis of equality of shares in profits and losses, and found a balance against the defendant, Bernard Travis, in favor of the plaintiff for $6,984.12, and in favor of the defendant, Jesse Travis, for $14,393.04.
The judgment entered upon the report of the referee was reversed by the general term, and the order of reversal, as finally entered, states that it was based “ upon the facts as well as the law.” No exception was taken to any finding of fact, so as to raise the question of law that there was no evidence tending to sustain it. Code Civ. Pro., § 995 ; Halpinv. The Phœnix Ins Co., 118 N. Y., 165 ; 28 N. Y. State Rep., 788; The Equitable Co-operative Foundry Co. v. Hersee, 103 N. Y., 25 , 27; 3 N. Y. State Rep., 100. The case does not show that it contains all the evidence, and no request to find any fact was presented to the referee.
The facts, therefore, as found by him must, for the purpose of any appeal, be accepted as the facts of the case, and the court will not look into the evidence, even so far as it is returned, for facts to reverse the judgment. Burnap v. Nat. Bank, 96 N. Y., 125 ; Thomson v. Bank British N. A., 82 id., 1; Baker v. Spencer, 47 id., 562 ; The Equitable Co-operative Foundry Co. v. Hersee, supra. As this court said in West v. Van Tuyl, 119 N. Y., 620 ; 28 N. Y. State Rep., 549, “no exception was taken to the finding, nor any request made to find differently. For aught that appears it was acquiesced in or conceded to be true.” "Under these circumstances the learned general term had no power to review the facts or to reverse the judgment upon the ground of error in the findings of fact. Aldridge v. Aldridge, 120 N. Y., 614 ; 31 N. Y. State Rep., 948; Porter v. Smith, 107 id., 531; 12 N. Y. State Rep., 479.
The claim that findings of fact appear under the head of conclusions of law in the report of the referee, and that the exceptions thereto gave the general term power to review the facts, is not well founded. An inspection of the report shows that certain facts, found as such in the body of the report, are alluded to in the conclusions of law in order to make plain the application of the law thereto. They are not excepted to as findings of fact, hut-as conclusions of law, eo nomine. As found under the head of matters of fact they are not excepted to at all. -The only exceptions taken are to the first, second, etc., conclusion of law, and to each and every part thereof. Hence the exceptions did not operate as notice to the successful party that the appellant intended to insist that such facts, thus incidentally recited, had no evidence to support them, or place upon him the responsibility of adding, by amendment, any evidence upon the question that had been omitted from the proposed case. Halpin v. The Phœnix Ins. Co., supra,.
It is insisted that the referee erred in not finding facts as to which there was little or no dispute, but an omission to find facts claimed by the unsuccessful party to be warranted by the evidence can only be taken advantage of by an exception to a refusal to so find upon request duly made as required by the Code. Code Civ. Pro., §§ 992, 993, 1023; Thomson v. The Bank of British North America, 82 N. Y., 1 ; Burnap v. National Bank of Potsdam, 96 id., 125 ; Graff v. Ross, 47 Hun, 152 ; 14 N. Y. State Rep., 636.
We have examined the exceptions relating to rulings made by the referee during the progress of the trial, but find no error that would justify a reversal of the judgment, and we are of the opinion that there is nothing in the record before us that' authorized the learned general term to reverse the judgment of the referee upon questions either of fact or law.
The order appealed from should, therefore, be reversed and the judgment entered upon the report of the referee affirmed, with costs.
All concur, except Haight, J., absent.