76 A.D. 443 | N.Y. App. Div. | 1902
The plaintiff appeals from a judgment for $2,056 for the defendant, entered upon the report of a referee. The plaintiff declared upon three causes of action:' (1) For a balance due upon a loan;: (2) upon a promissory note for $3,000, made by the. defendant to the plaintiff; and (3) for a balance due in the buying and selling of cotton wherein the plaintiff was the broker of the defendant. The defendant answered, first, that he had discharged the balance by the transfer of - certain shares of stock which were accepted in payment ; second, he admitted the making and delivery of the note ;, and, third, he pleaded that the plaintiff did not fully account to-him or credit him with the profits of certain transactions. He counterclaimed a payment of $5,026.27 on account of the plaintiff. The plaintiff replied that such payment had been made by special agreement, on account of an indebtedness to the plaintiff. The learned referee found that the balance covered by the first cause df action had been paid, allowed the second cause of action, found a balance due to plaintiff for the third cause of action, and found for the defendant upon the counterclaim. The judgment represents the counterclaim, less the amounts found as due to the plaintiff.
We'should not disturb the decision of a referee upon the contésted facts unless the preponderance of evidence in favor of the defeated party was so great that it can be said with reasonable certainty that the findings of' the referee are erroneous; (Burton Co. v. Cowan, 80 Hun, 393, per Cullen, J.; affd. on opinion below,. 150 N. Y. 583; Lowery v. Erskine, 113 id. 52, 55 ; Barnard v. Gantz, 140 id. 249.) In this case we are of Opinion that , the findings are sustained by a clear preponderance Of the proof.
•It appears from the record that, the defendant was examined on various occasions between July 1,1901, and October 25,1901, inclusive. As the plaintiff died subsequent thereto, the question presented is whether the testimony, competent at the time it was given, was rendered incompetent by the subsequent death of the plaintiff while the action was in hearing. The learned counsel for the appellant has argued with earnestness and ability that, as the réason for the rule exists, the rule should obtain, the reason being that the lips of contradiction or explanation are forever closed. It is certainly true that such was the fact when the motion was made, but it was-not the fact, and, therefore, the reason did not exist when the testimony was given. The motion, to strike out was. based upon section. 829 of the Code of Civil Procedure. I am not cited to any authority directly pro or con upon the points of either counsel. I do not find that, section 829 applies, to the circumstances of the case. The-authorities which I have found are against the appellant. In Corrwns:
The judgment should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.