Opinion
March Term, 1896.
Irving Paine, for the appellant.
John F. Little, for the respondents.
From the evidence it appears that the plaintiffs were co-partners, doing business as merchants at Wallace, in the town of Avoca, Steuben county, in 1882 and 1883, and that they sold goods and merchandise to the defendant, most of which were received by his wife and family; that in the course of the dealings a pass book was used, prepared by the plaintiffs and delivered to the defendant or his wife, and that in 1882 the pass book was produced and a settlement had between the parties, and it was found there was no balance due from one to the other. Thereafter the defendant continued to trade at the plaintiffs' store, and the account, which is the subject of this action, accrued, and while the account was thus accruing it seems that the defendant, or his wife, was accustomed to take checks to the plaintiffs' store and have some of them credited upon the account and some of them cashed. Thereafter a controversy arose over the checks cashed by the plaintiffs, and as to the amount of cash received by the defendant's wife thereon, to be charged to the account of the defendant.
There is a conflict in the evidence between the plaintiffs' witnesses and the defendant's witnesses as to the checks of the defendant which he indorsed to his wife, the wife insisting that there had not been credited upon the account all moneys which she had paid to, or intended to pay to, the plaintiffs upon the account. It was for the referee to determine what credit should be given to the defendant's wife, after considering all the circumstances surrounding her and her testimony upon the vital question of fact involved in the case. ( Elwood v. Western Union Tel. Co., 45 N.Y. 549; Roosa v. Smith, 17 Hun, 138; Wilcox v. Selleck, 92 id. 38.) The referee seems to have resolved the principal features as to the conflict arising upon the evidence before him in favor of the plaintiffs. We ought not to disturb his finding upon the conflict in the evidence.
The referee has written a sensible opinion, showing the manner in which he dealt with the evidence before him. The appellant does not point out any error requiring an interference with the conclusions stated in the referee's report. Nor do the exceptions taken during the progress of the trial require us to interfere with the decision made by the referee. The judgment must, therefore, be affirmed.
All concurred.
Judgment affirmed, with costs.