Newton v. Newton

The conclusions of fact stated by the referee are supported by the evidence given at the hearing. There was a severe conflict in the evidence given by the plaintiff as a witness and the testimony given by his father, William H., and his mother, Esther, and his brother, George Newton, as well as in some other circumstances and evidence disclosed in the case. The conclusions of- fact stated by the referee are in accordance with the weight of the evidence as it appears to us from an inspection of the appeal book. The rule relating to review of evidence that is conflicting is stated in Roosa v. Smith, 17 Hun, 138, and we think that rule is eminently applicable to the case in hand. It was there said by the learned judge who delivered the opinion of the court, viz.:

“We understand this court lias the power to examine the evidence and the findings of fact in cases tried before a referee or the courts; that it lias the power, and it is its duty, to interfere when facts have been found without evidence or clearly against evidence. But we do not understand it can be called on in doubtful cases upon conflicting evidence, depending upon the character and credibility of witnesses, to review and readjust the facts upon the evidence as it shall appear to it on paper.”

That rule has been sanctioned and followed in numerous cases. Baird v. Mayor, 96 N. Y. 567; Stanley v. Bank, 115 N. Y. 122, 22 N. E. 29; Devlin v. Bank. 125 N. Y. 756, 26 N. E. 744; Teeter v. Teeter (Sup.) 20 N. Y. Supp. 259; Sackett v. Thomas, 4 App. Div. 448, 38 N. Y. Supp. 608; Curry v. Wiborn, 12 App. Div. 1, 42 N. Y. Supp. 178. The referee saw the son, the plaintiff, his father and mother and brother, and the other witnesses, who were called to speak upon the subject of the settlement made with his f.ather, and could judge quite as well as the members of this court can from reading the record of their evidence as to the credibility of the respective witnesses, and *510we may fairly assume that the report of the referee is evidence of the belief and credit which he gave to the testimony of the father, the mother, and the brother of the plaintiff. Although a very protracted and intelligent discussion of the conflicting evidence has been submitted to us in behalf of the appellant, the plaintiff, in which there is not only insinuation, but direct charge, that the parents have committed perjury by falsely testifying in numerous instances, and by a careful array of different phases of the evidence with a view of showing the improbability of the testimony delivered by the father and the mother, yet we are satisfied with the conclusion stated by the referee upon the whole evidence, and that he was warranted in finding that the plaintiff had accepted the note of the defendant William H.. Newton, and agreed to rely thereon, and that he expressly accepted the same in settlement of the sum due him for services, as well as any claim he had upon his grandfather’s estate for the legacy mentioned in the complaint. The testimony also supports the finding of the referee to the effect that, subsequent to the delivery of that note, the plaintiff prepared a deed of certain premises to be made by his father to his mother, and assured his mother, at the time she received such deed, that she would thus acquire a clear and unclouded title to the property, freed of any claim by reason of any legacy mentioned in the grandfather’s will.

Several rulings were made during the progress of the trial to which exceptions were taken. We have given attention to them, and, so far as the rulings relate to the questions of fact which we have already stated, we are of the opinion that they do not present prejudicial error requiring us to interfere with the conclusion reached by the referee. We are of the opinion that the report of the referee should be sustained.

Judgment affirmed, with costs. All concur.