There is nothing in this case bnt a question of fact depending on the accuracy of the witnesses’ recollection of dates, plaintiff contending that there was a hole in the pavement at the time which caused the accident, and defendant that it had been repaired a week before. The referee “ had all these witnesses before him; he noted their manner of testifying, and has had the benefit of having heard the live evidence as it came from the lips of the witnesses, rather than reading their words in cold type, and he is free to say that the testimony of Mr. Lawrence — that he repaired the hole on April 8, 1904— did not impress him in point of accuracy, as to date of repair. The referee is, therefore, constrained to disregard the evidence of repair on April 8, 1904 ; and to find that from at least March 31, 1904, to and including the day of the alleged accident to the plaintiff, a defect or hole as described by the witnesses actually existed in the footway in question.” He, therefore, found that the accident was due to the city’s negligence. This finding was approved by the court and there is nothing to justify us in disturbing it.
J udgment affirmed..