Platt v. Thorn — 21 N.Y. Super. Ct. 574

Majority

p. 574

Charles H. Platt, Plaintiff and Appellant, v. Alfred F. Thorn and Isaac Newton, Defendants and Respondents.

Headnote

1. The objection that a Beferee’s report does not state the facts found and his conclusions of law separately, cannot be raised on an appeal from the judgment entered on the report; but only by a motion at special term to correct the report.

2. On an appeal in such case, the Court will not interfere with the Beferee’s rejection of part of the plaintiff's demand, and his allowance of a counterclaim made by the defendant, where these were apparently the result of his determination of facts, and are sustained by some evidence, and not against such weight of evidence as to justify setting aside the report on that ground.

3. To show that a particular debt was included in an assignment of assets made by partners on the dissolution of their firm, it is admissible to prove, by a witness, that it was included, and was specified in the inventory prepared for the purpose, without producing the inventory.

4. In an action in which the defendants had set up a counterclaim, one of them, being examined as a witness, testified that the demand had been assigned, among other things, to himself by the other defendant: Held, that defendants might prove by another witness, that the demand was expressly excepted from the assignment, and that the defendant who had taken the assignment had agreed to defend the suit and enforce the counterclaim for benefit of both defendants.

(Before Bobertsoh and White, J. J.)

Heard, March 14;

decided, November 8, 1861.

Appeal from a judgment entered on the report of a ‘Referee.

This action was by Charles H. Piatt against Alfred F. Thorn and Isaac Uewton; and the complaint stated as a cause of action, that the defendants were indebted to the plaintiffs on an account for goods sold and delivered. The answer of the defendants, among other things, set up that on the 20th of December, 1858, the plaintiff became indebted to the firm of J. J. Jones & Co., in the sum of $111.12, for the use and occupation of a loft, at the yearly rent of $200; and being so indebted, promised to pay the same, and that on said day, Jones & Co. duly assigned the

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same to the firm of Thorn, Jones & Hewton. That on the 23d of April, 1859, the plaintiff became indebted to the firm of Thorn, Jones & Hewton, in the further sum of $68.33, for the use and occupation of the same loft upon the same terms, and that on the 23d day of April, 1859, Thorn, Jones & Hewton' duly assigned said claims for the use and occupation of said premises, to the firm of Thorn & Hewton. That on the 30th day of April, 1859, the plaintiff, being so indebted to said defendants, became indebted to them in the further sum of $3.88, for the use and occupation of said premises from the 23d day of April, 1859, to the 30th day of April, 1859. And it alleged a promise to pay the aggregate rents to defendants.

The cause was brought to trial before Charles A. Peabody, Esq., as Eeferee, on the 8th of June, 1860. The defendant Thorn being sworn as a witness for the defense, testified that there was no special assignment of the rent from the old firm to the new firm of Thorn & Hewton; but that it was put down in the inventory of the stock, as so much due the new firm. He stated that in the inventory the amount was included in an aggregate of rents due from all the tenants and occupants under the old firm.

After defendants rested, plaintiff’s Counsel moved to strike out the testimony of Thorn in relation to the assignment of the rent, unless the inventories spoken of by him were produced, as it appeared in his cross-examination that whatever was assigned to the defendants was in the inventories, and they were the best evidence.

The motion was denied, and plaintiff’s Counsel excepted.

This defendant subsequently testified that in April, 1860, he purchased the stock and assets of the firm of Thorn & Hewton, who were the defendants in this action, and that the assets included the rent due them.

The plaintiff’s Counsel then moved to strike out all the defendants’ testimony relating to the rent, on the ground that it now appeared from the testimony of the defendant Thorn, that all rent due the old firms, J. J. Jones & Co.,

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and Thorn, Jones & Newton, and Thorn & Newton, was transferred to the defendant Thorn, in April, 1860, and that the same was not the subject of a counterclaim by the two defendants, Thorn & Newton, jointly.

The defendants’ Attorney objected, he offering to swear that the counterclaim set up in the answer was expressly reserved from the sale of the assets, of Thorn & Newton, and that it was agreed that Mr. Thom should defend this suit for and in behalf of himself and Newton, and that the counterclaim should remain jointly between them— should remain as it was, excepted from the sale.

To this offer plaintiff’s Counsel objected, but the objection was overruled and the offer allowed and plaintiff excepted, and this testimony of the defendants’ Attorney having been received, the plaintiff’s Counsel then renewed his motion to strike out the evidence, but it was denied by the Beferee, and plaintiff’s Counsel excepted.

The Beferee reported in favor of the plaintiff for a part of the amount he had claimed due to him, and in favor of the defendants for a part of their counterclaim for rent, &c., and that, on the whole, the defendants were entitled to judgment for a small balance, with costs.

The plaintiff excepted to the report and appealed from the judgment entered thereon.

M. L. Townsend, for plaintiff, (appellant,) insisted:

I. That plaintiff was entitled to recover his whole demand.

n. That the counterclaim was not admissible.

III. That the testimony of defendant’s Attorney should not have been received.

IV. That plaintiff’s motion to strike out the defendant’s testimony as to the assignment and inventory, should have been granted.

John D. Monell, for defendants, (respondents,) urged:

I.’ That the Beferee properly rejected part of plaintiff’s claim.

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II. That he properly found that the counterclaim belonged to both defendants.

III. That his error in not stating conclusions of law and of fact separately, was not available on the appeal. (Ingraham v. Gilbert, 20 Barb., 151 .)

IY. That the findings not being clearly against evidence, nor the result of partiality, should not be interfered with.

Y. That a report need not, as part of the record, state the conclusions of law and of fact separately; such a statement only being necessary in a case settled; and that a ease without such findings presents nothing for review. (Johnson v. Whitlock, 3 Kern., 344 ; Westcott v. Thompson et al., 2 Smith, 613 ; Otis v. Spencer, 6 Abb. Pr. R., 127.)

This action was brought to recover $195.03, with interest alleged to be due to the plaintiff' from the defendants, for goods sold and delivered by him to them.

The defendants pleaded in abatement, that one John J. Jones was a partner of the defendants at the time of the transactions upon which the plaintiff’s alleged claim is founded; and they also set up a counterclaim to the amount of $198.28.

The cause was referred, testimony was taken, and the Beferee reported that the sum of one dollar and forty-two cents was due to the defendants, for which they were entitled to judgment against the plaintiff. The Beferee did not state the facts found by him and his conclusions of law separately.

The plaintiff has appealed from the judgment entered on this report, and alleges as error that the Beferee found adversely to him on certain items of his account against the defendants; and secondly, that no part of the defendants’ counterclaim should be allowed, and he has also excepted to the admission by the Beferee, of certain questions put by the defendants’ Counsel to one of the witnesses, and to the denial by the Beferee of certain motions made by him to strike out or exclude portions of the de

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fendants’ testimony. Objection is also made by the plaintiff, that the Referee did not state the facts found by him, and his conclusions of law separately.

This last objection cannot he entertained on the argument of the appeal. It could only have been presented upon motion at Special Term, to correct the Referee’s report.

The rejection of any part of the plaintiff’s claim, and the admission of the defendants’ counterclaim, by the Referee, were, so far as we can judge from his report and. the proceedings before him, the result of his determination of questions of fact in the case and as there was, at least, some testimony to sustain his finding upon.those questions, and no such preponderance of proof on the other side, as would justify the Court in setting aside his report as being against the weight of evidence, we ought not to interfere. We also think, that there was no material error in any of the other matters presented by the appellant.

The judgment must, therefore, be affirmed with costs.