Shults v. Shults — 40 N.Y. St. Rep. 618

Majority

p. 618

Josiah Shults, App’lt, v. Nellis Shults et al., Resp’ts.

(Supreme Court, General Term, Fifth Department,

Filed October 23, 1891.)

Headnote

Befebence—Appeal.

The findings of a referee to whom it is impossible to attribute partiality, corruption or incompetency, based upon a clear preponderance of evidence, and opposed in only one branch of the case by circumstances which are, however, not irreconcilable with the conclusion reached, will not be disturbed by the appellate court.

Appeal by plaintiff from a judgment entered on the report of a referee dismissing the complaint on the merits, with costs.

J. F. Parkhurst, for app’lt; O. S. Searl, for resp’ts.

The case presents only questions of fact which have been passed upon by a very competent, careful and faithful referee. His findings are all of them supported by a clear preponderance of the direct evidence in the case, and in respect to one branch of the case only are opposed by circumstances which might possibly have lead to a different conclusion but are not irreconcilable with the conclusion reached. The court is not at liberty to disturb findings based upon such a presentation of the evidence, when made by a referee to whom it is impossible to attribute either partiality, corruption or incompetency. Howell v. Biddlecom, 62 Barb., 131 .

p. 619

All the rulings on questions of evidence were correct, and the findings of fact unquestionably support the conclusions of law.

There are strong suggestions of hardship in the case which might possibly, we think, have led to a refusal of costs to the defendant; but in that respect, even, we do not feel at liberty to interfere with the exercise of discretion on the part of the referee.

The judgment appealed from must therefore be affirmed, but we think it proper not to award to either party the costs of this appeal.

Judgment appealed from affirmed, but without costs of this appeal to either party.

Macomber and Lewis, JJ., concur.