Dolan v. Merritt

I think the order appealed from, if allowed ■ to stand, would make a very undesirable change in the practice of the court. It is the duty, of a referee to find facts, not to sot forth the elements from which the conclusion of fact was deduced ; in other words, to decide the disputed fact, without a statement of the evidence which governed him in doing so. Such is the statutory requirement, as the same has been uniformly interpreted. (Code of Civil Procedure, § 1022.) A referee is required to report upon the issues only, and not upon the evidence; and having reported his conclusions as to a fact, he is not called upon to find or explain the means or processes by which he arrived at such conclusions. (Van Slyke v. Hyatt, 46 N. Y., 263; 3 Wait’s Pr., 307.) The rule is clearly and accurately stated in the case cited, namely, that the report should show the dispositions made by the referee of the specific issues in the cause. In the case before us the issue was whether the note was made upon a sufficient consideration. The referee found that it was so made, and also found the facts which proved the consideration thereof, namely, the sum of $5,000, which the defendant received upon a parol trust to pay to the decedent. No further finding is necessary or proper; for an *29exception to the decision of the referee will, on an appeal from the judgment, bring up tbe whole evidence for review.- Exceptions to findings of fact are useless. (Roe v. Roe, 14 Hun, 613.) If tbe evidence be insufficient to sustain the decision of the referee, the judgment will be reversed, otherwise it' will and ought to be affirmed. The referee was not required to find whether the consideration of the note sprang from a legacy to the defendant, the amount of which she received upon a parol trust to transmit to the decedent, or from another sum of money delivered to the defendant upon a parol trust for the same purpose, because the same question would be presented by proof of either of those facts.

The order should be reversed, with ten dollars costs and disbursements.

Order reversed, with costs and disbursements.