2 Barb. 326 | N.Y. Sup. Ct. | 1848
So far as this controversy is a mere matter of account between these parties, it is a question of fact on which this court would not disturb the report of the referee, unless it was clearly against a strong preponderance of evidence. But there was testimony on both sides, and we see no reason to differ from the referee in the conclusions at which he arrived, on the state of the accounts. The claim interposed by the defendant for the missing lumber, and which was rejected by the referee, presents the only question that can properly be raised in this case. It is contended, on the part of the defendant, that the onus probandi is upon the plaintiff to exculpate himself from all blame. In the case of Platt et al. v. Hibbard et al., (7 Cowen, 497,) tried before Walworth, circuit judge, at the Clinton circuit in January, 1827, the learned judge, in his charge to the jury, said that “ when property entrusted to a warehouse-man, wharfinger, or storing and forwarding merchant, in the ordinary course of business, is lost,
In the present case, therefore, it was a question of fact for the referee, whether any lumber which had been delivered on
This in fact disposes of the motion. If the plaintiff was not guilty of any fault, occasioning the loss of the lumber, it would seem to be an idle ceremony to inquire, whether if he had been guilty of a fault occasioning that loss, it formed the subject either of a set-off or recoupment; and if the latter, whether it would have been given in evidence without notice. The cases on the subject of recoupment referred to, are Pab v. McAllister, (8 Wend. 109.) 22 Id. 155. 5 Hill’s Rep. 71, 76. 2 Id. 194. They seem to uphold the decision of the referee; but it is not deemed advisable to place the case upon that ground.
The motion to set aside the report of the referee must be denied with costs.