Heim v. Link — 52 N.Y. Super. Ct. 547

Majority

p. 547

BERNARD HEIM, et al., Respondents, v. FREDERICK LINK, et al., Appellants.

Headnote

Referep—right of to disregard testimony of loth sides on question of quantity, ete., and make independent finding.

Before Sedgwick, Oh. J., Van Voest and Feeedman, JJ.

Decided December 7, 1885.

Appeal from judgment in favor of plaintiffs, entered upon report of referee.

The controversy in this case arises upon a delivery by plaintiffs to defendants of three hundred and ten bellies, weighing two thousand seven hundred and thirty-six pounds, under a contract calling for about four thousand pounds of bellies at 9f cents per pound for heavy, and Ilf cents for light smoking bellies, and the only question presented by the appeal is one of fact. It is how many of the bellies so delivered were light smoking, and how many were heavy bellies. All other questions of fact have been waived by not printing the evidence bearing upon them. Upon the point in dispute the plaintiffs claimed before the referee, that the bellies delivered were light smoking bellies, weighing two thousand seven hundred and thirty-six pounds, which, at Ilf cents per pound, entitled them to $321.48. The defendants claimed that nine hundred and thirty-one pounds were light smoking, and one thousand eight hundred and five pounds were fat or heavy bellies, and that consequently the judgment should be for only $285.38.

The referee held that neither were right; that one thousand eight hundred and thirty-three pounds .were light smoking, and nine hundred and three pounds were fat or heavy, which, under the price fixed by the contract for the two qualities, entitled the plaintiffs to a judgment for $303.41.

The Court at General Term (after stating the facts as

p. 548

above), said “ For thus splitting the difference between the parties, the referee had no warrant in any testimony hearing directly upon the point, and, if it were necessary to the maintenance of the judgment that the finding should be sustained precisely as made, it perhaps could not be done even upon a balancing of probabilities disclosed by evidence. But no such precision is necessary. Upon the whole case, the evidence clearly preponderated in favor of the plaintiff, and the referee should have sustained their entire claim. If, therefore, he erred, he erred in favor of the defendants, and of this the defendants ought not to be heard to complain.”

L. A. Gould, for appellants.

Baldwin & BlacJcmar, for respondents.

Opinion by Freedman, J.; Sedgwick, Oh. J., and Van Vorst, J., concurred.

Judgment affirmed, with costs.