Larkin v. Taber — 5 Silv. Sup. 538

Majority

p. 538

Thomas J. Larkin, Respondent, v. William C. Taber, Appellant.

Supreme Court, Fourth Department, General Term,

February 15, 1890.

Headnote

Appeal. Findings.—Where the evidence on a question of fact is conflicting, the finding of the referee, if fairly sustained by the evidence, will he upheld.

Appeal from a judgment entered in Tompkins county, July 8, 1889, on the report of a referee.

J. A. Elston, for appellant.

Rrank M. Leary, for respondent.

This action was to dissolve a copartnership alleged to have existed between the parties, and for an accounting in relation to the copartnership business of the firm. The plaintiff also asked for the appointment of a receiver to take possession of the property and interests of such firm, to sell the same, pay the debts and divide the remainder between the parties according to their interests therein.

The appellant now claims, as he did upon the trial, that the copartnership between the parties was dissolved before the commencement of this action, that he had purchased all the plaintiff’s interest in the assets and assumed all the debts and liabilities of said firm, and, therefore, that this action could not be maintained. This was denied by the plaintiff, and presented substantially the only issue between the parties. An examination of the appeal book discloses that the evidence upon that question was conflicting. The referee found for the plaintiff. We think the findings of the referee

p. 539

upon that question were fairly sustained by the evidence and should be upheld. We have found no exception in the case which would justify a reversal of the judgment.

If, therefore, we assume that the practice of the appellant has been regular, and the questions which he seeks to review are properly before this court, still it follows that the judgment should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J., and Merwin, J., concur.