Hopkins v. Marlette — 47 N.Y. St. Rep. 916

Majority

p. 916

William L. Hopkins, Resp’t, v. Menzo Marlette, Surviving Administrator, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed September 30, 1892.)

Headnote

1. Bills akd notes—Payable after death.

An instrument reading as follows: “ One day from date, for value received, I promise to pay JEL, or bearer, one thousand dollars, with interest, payable at my death," is in form a valid promissory note.

:2. Appeal—Conflicting evidence.

When the evidence is conflicting and contradictory the findings of a referee will not be disturbed on appeal.

Appeal from a judgment entered in Otsego county on the 30th day of April, 1891, upon- the report of a referee; and also from an order denying defendant’s motion to set aside and vacate the report of the referee and from an order of confirmation of the referee’s report. Plaintiff presented a claim against the defendant .-as administratorthere was an offer to refer and a reference had under the statute and a report was made by the referee awarding to the plaintiff the sum of $1,665.69.

W. H. Johnson and Melville Keyes, for app’lt; S. S. Edick and C. F. Mayham, for resp’t.

—Upon the hearing before the referee the plaintiff produced a promissory note in the following words:

“ Laurens, April 21, 1883.

“ One day from date, for value received, I promise to pay Wm. L. Hopkins, or bearer, one thousand dollars, with interest, payable at my death.

“(Signed) Maria Harrison.”

Recently in two cases decided by the court of appeals such an instrument has been held to be a valid promissory note. Carnwright v. Gray, 127 N. Y., 92 ; 38 St. Rep., 56 ; Hegeman v. Moon, 131 N. Y., 462 ; 43 St. Rep., 662 .

Whether the note was genuine or not was made one of -the urincipal questions upon the hearing before the referee. On either side much evidence bearing upon that question was produced. 'The referee saw and heard the witnesses and reached a conclusion'

p. 917

upon their conflicting statements; and applying the rule governing appellate courts in review of such findings upon evidence conflicting and contradictory like that found m the appeal book, we do not feel at liberty to disturb his conclusion. Baird v. Mayor, 96 N. Y., 576 ; Aldridge v. Aldridge, 120 id., 617 ; 31 St. Rep., 948 ; East River National Bank v. Gove, 57 N. Y., 598 .

In Aldridge v. Aldridge, supra, it was said that ‘"To justify a reversal it must appear that the findings were against the weight of evidence, or that the proofs so clearly predominated in favor of a contrary result that it can be said with a reasonable degree of certainty that the trial court erred in its conclusion.”

(2) We are of the opinion -that the rulings made by the referee and the exceptions taken thereto present no prejudicial error. The questions of fact and the rulings made by the referee are quite satisfactorily discussed in the opinion of Parker, J., delivered at the September special term in Tioga in deciding the motion to set aside the report of the referee.

(3) No question was made before the special term last mentioned, nor is any made by the appellant in the brief before us as to the award of costs in this action, and we therefore do not pass upon that question.

Judgment and orders affirmed, with costs.

Martin and Merwin, JJ., concur.