Tompkins v. Lee 59 N.Y. 662

George M. Tompkins, Respondent, v. Henry M. Lee, Appellant.

(Argued January 19, 1875;

decided February 2, 1875.)

It seems, that where the findings of fact settled by a referee in a case are in conflict with the findings contained in his report, the former will be assumed to be correct and the latter will be disregarded.

This action was tried by a referee. The case as settled contained a statement of facts as found by the referee, other and additional to those contained in his report. It was contended by the defendant that the additional findings were in direct conflict with the findings in the report, and that the latter must yield. The opinion concedes the conclusion in these words: “ If this were so it would present the question whether the finding of the referee embraced in his report or the finding settled by him in the ease should be regarded as correct by the court. I think the latter must be assumed as correct, and the former, so far as it conflicts, must be disregarded. The Code (§ 272) requires the referee, for the purpose of a review, to settle a case in the same manner as provided by section 268. The latter section requires the court, in settling the case, to briefly specify the facts found. This shows that these facts are to be assumed as those really found by the court upon review.” But the court held, that the additional findings were not in conflict with those in the report, which the court assumed the referee intended to include in his findings in the case. The other questions in the case were upon the facts. The court held, that there was evidence sufficient to sustain the findings.

Samuel Hand for the appellant.

George W. Miller for the respondent. .