16 N.Y.S. 92 | New York City Court | 1891
This case was tried before a referee, and judgment rendered in favor of the plaintiff. The counsel for the appellant has devoted four pages of his brief to a review of the conduct of the referee. There is nothing in the case to show, or tending to show, any misconduct on his part, and there is nothing to show that the alleged facts ever occurred, except the statement of counsel. We do not understand why a lawyer, after a case is decided against his client, should go out of his way to make a personal attack on the officer who so decided the case. If it was necessary to protect the reputation of the referee in this case, we should order that the first four pages of the brief of the counsel for appellant be suppressed as scandalous. If the referee conducted himself as stated, the defendant should have moved to vacate the order of reference, and not have waited until after an adverse decision before disclosing the charges to the court. The defendant filed no exceptions to the findings of fact. Exceptions were filed as to each decision of law, and three requests to find were made: (1) That the partnership should be dissolved; (2) that the testimony showed that the defendant was entitled out of the assets to $3,587 or $2,014.50; (3) that judgment should be rendered in favor of defendant, with costs.
No exceptions have been filed to the refusal of the referee to find the second and third requests. The counsel for the plaintiff contends that there is nothing before the court for review, except the question whether the findings of fact justify the conclusions of law. He also contends that this court has no power to review the findings of fact, or to determine whether they are against the weight of evidence. It appears from the certificate of the referee that the case contains all the testimony, and we hold, on the authority of Porter v. Smith, 107 N. Y. 531, 14 N. E. Rep. 446, that, under the new Code, no exceptions to findings of fact are necessary to enable the appellant to raise the question that such findings are against the weight of evidence, provided it appears that the case contains all the testimony. See, also, Porter v. Smith, 7 Civil Proc. R. 195; Mead v. Smith, 3 Civil Proc. R. 171.
After a very careful review of the record in this case, we are of the opinion that two material findings of fact are clearly against the weight of evidence, and that the testimony was insufficient to justify either of said findings. The referee has charged the defendants with the sum of $2,905.55 for money received by the copartnership and not accounted for, and for $1,778.98 for debts paid by the receiver, the excess of debts which did not appear on the books of the copartnership. The referee substantially holds that Mr. Kling was bound by the books; that, if money received was not entered in the books, or if debts due by the firm were not entered, the estate of Kling, who is now dead, must be held liable for the same. While it is true that, by the articles of copartnership, Kling was to have full control of the financial management of the business, and was to have sole power to sign checks and disburse money, yet it appears that entries in the books were made, not only by Mr. Kling, but by Mr. Barrett, the representative, in the business of the plaintiff, and by the