McCulloch v. Dobson — 39 N.Y. St. Rep. 908

Majority

p. 908

Robert McCulloch, App’lt, v. James Dobson et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed July 2, 1891.)

Headnote

Refebence—Incapacity of befebee.

The report of a referee will not be set aside on the ground that his intellect was impaired when he signed the same, in a case where he died six days after making it from heart disease, where it appears that he personally attended to business as usual up to two days before his death.

Appeal from order denying motion to set aside the report of a referee.

Benno Loewy, for app’lt; George L. Carlisle, for resp’ts.

—The referee in this case made his report on the 14th of July, 1888. He died on the 20th of July, 1888. A motion was made to set aside his report on the allegation that the referee’s mind was impaired when he signed the same. The proof is overwhelming upon this question in favor of the referee. Up to two days before his death he attended to a leading business personally, with a mind as sound as it had ever been. This is established by members of his family; by his leading clerk; by his physician and by the testimony of lawyers and business men who knew the referee. While there had been failing health for some time before his death, there was no impairment of intellect, and his death was sudden at least from heart disease.

The order should be affirmed, with costs and disbursements.

Dykman and Pratt, JJ., concur.