Smith v. Lapham 87 N.Y. 631

Nelson Smith, Appellant, v. Oliver K. Lapham, Respondent.

It seems that the clause in section 1003 of the Code of Civil Procedure pro, viding that an error in the admission or1 exclusion of evidence, etc., “ upon the trial may, in the discretion of the court which reviews it, be disregarded if that court is of opinion that substantial justice does not require that a new trial should be granted,” has no application to a trial before a referee.

(Argued October 27, 1881 ;

decided January 17, 1882.)

*632This action was brought to recover for goods alleged to have been sold and delivered. It was referred to a referee to hear and determine, and was tried before the referee. The questions were mostly those of fact, as to which the court held there was sufficient evidence to sustain the findings. Various exceptions were presented as to the reception and rejection of evidence. As to them the opinion of the General Term says: “ The rulings made during the trial do not, within the rule prescribed by section 1003 of the Code, require a reversal of the judgment.”

The court here say: “We have examined these exceptions and do not find in them grounds for reversing the judgment. Section 1003 of the .Code referred to in the opinion at General Term is not, we think, applicable to this case and we do not rely on it to sustain the judgment.”

J). A. King for appellant.

8. C. Huntington for respondent.