Travis v. Travis

• Decision Date: 02 December 1890
• Parties: TRAVIS v. TRAVIS et al.
• Court: New York Court of Appeals Court of Appeals

122 N.Y. 449

25 N.E. 920

TRAVIS

v.TRAVIS et al.

Court of Appeals of New York,

Second Division.

Dec. 2, 1890.

Appeal from an order of the general term of the supreme court in the second judicial department, reversing a judgment entered on the report of a referee. For opinion on motion in the general term to dismiss appeal, see 1 N. Y. Supp. 357.

Charles H. Machin and George F. Martens, for appellants.

Martin J. Keogh and Arthur Furber, for respondent.

VANN, J.

This action, brought for an accounting between copartners, was tried before a referee, who stated the account on the basis of equality of shares in profits and losses, and found a balance against the defendant Bernard Travis, in favor of the plaintiff, for $6,984.12, and in favor of the defendant Jesse Travis, for $14,393.04. The judgment entered upon the report of the referee was reversed by the general term, and the order of reversal, as finally entered, states that it was based ‘upon the facts as well as the law.’ No exception was taken to any finding of fact, so as to raise the question of law that there was no evidence tending to sustain it. Code Civil Proc. § 993; Halpin v. Insurance Co., 118 N. Y. 165, 23 N. E. Rep. 482; Foundry Co. v. Hersee, 103 N. Y. 25, 27, 9 N. E. Rep. 487. The case does not show that it contains all the evidence, and no request to find any fact was presented to the referee. The facts, therefore, as found by him, must for the purpose of any appeal, be accepted as the facts of the case, and the court will not look into the evidence, even so far as it is returned, for facts to reverse the judgment. Burnap v. Bank, 96 N. Y. 125;Thomson v. Bank, 82 N. Y. 1;Baker v. Spencer, 47 N. Y. 562; Foundry Co. v. Hersee, supra. As this court said, in West v. Van Tuyl, 119 N. Y. 620, 23 N. E. Rep. 450: ‘No exception was taken to the finding, nor any request made to find differently. For aught that appears it was acquiesced in, or conceded to be true.’ Under these circumstances, the learned general term had no power to review the facts, or to reverse the judgment upon the ground of error in the findings of fact. Aldridge v. Aldridge, 120 N. Y. 614, 24 N. E. Rep. 1022; Porter v. Smith, 107 N. Y. 531, 14 N. E. Rep. 446. The exceptions filed to the referee's conclusions of law present no debatable question, as it is obvious that each of the two copartners, in whose favor a balance was found against the third, was entitled to judgment against him therefor.

The claim that findings of fact appear under the head of conclusions of law in the report of the referee, and that the exceptions thereto gave the general term power to review the facts, is not well founded. An inspection of the report shows that certain facts, found as such in the body of the report, are alluded to in the conclusions of law in order to make plain the application of the law thereto. They are not excepted to as findings of fact, but as conclusions of law, eo nomine. As found under the head of matters of fact, they are not excepted to at all. The only exceptions taken are to the first, second, etc.,...