Martin v. Johnston

26 N.Y.S. 1105 | The Superior Court of the City of New York and Buffalo | 1893

GILDERSLEEVE, J.

This is an appeal by plaintiff from a judgment entered in favor of defendants upon the report of a referee dismissing the complaint. The action was brought to compel the specific performance of a written contract. The complaint contains the usual allegations of due performance of all the conditions, covenants, and agreements to be kept and performed by plaintiff, and charges that the defendant Johnston fáiled to keep and perform the contract on his part. None of the evidence taken before the referee appears in the record, as the case comes up on exceptions filed to the referee’s report. The plaintiff has not appealed from the referee’s refusals to find the facts in plaintiff’s favor, and plaintiff must therefore be held to acquiesce in the conclusions of fact reached by the referee. Has the learned referee, upon the facts as found, reached a correct conclusion of law? The determination of this question seems to be the sole duty of the general term. In the sixteenth finding of fact the learned referee finds “that the plaintiff failed to observe, and plainly violated, the promises and agreements made by him in the said agreement.” The learned referee holds-that the plaintiff is guilty of affirmative acts in violation of the contract. This is an insurmountable obstacle in the way of plaintiff’s success upon this appeal. Such a finding calls for the dismissal of the complaint. It would seem that plaintiff’s proper course would have been to treat the contract as continuing, and sue for damages-for the breach by defendant Johnston. All we now decide, however, is that, upon the facts as found by the referee, the complaint was properly dismissed. For these reasons, and for the reasons set forth in the opinion of the learned referee, which appears in full in the papers before us, the judgment must be affirmed, with costs.