Gilmore v. Atlantic & Pacific Rail Road

35 Barb. 279, 1861 N.Y. App. Div. LEXIS 142

• Court: New York Supreme Court
• Decided: September 16, 1861
• Status: Published

Opinion

Clerke, P. J.

As the counsel of the plaintiff truly says, in his points, the only issue raised by the defendants is, that they did not employ the plaintiff by themselves or agents. On this issue the referee expressly finds for the defendants.

He correctly admitted proof of payment by the alleged agents, in stock, not to prove payment, but to prove that the plaintiff considered them, and not the defendants, as his employers. There was a conflict of evidence, upon the issue; and even if we thought that the preponderance of evidence seemed in favor of the plaintiff, it would be contrary to our well established rule to disturb the finding of the referee, Unless it was palpably erroneous.

The judgment should be affirmed, with costs.

Leonard, J.

The exhibits proven by Jaudon tended to prove that Gilmore had given credit to, and had been paid by, J ones & Co., and, of course, that he had not given credit to, or relied on, the responsibility of the defendants. The evidence was properly admitted.

The evidence of Waggoner, when recalled, is, that Bradley and Gilmore knew nothing of the defendants, and refused to go to Texas on their employment, unless the contractors, J ones, Waggoner and others, would see them paid and advance their expenses.

[New York General Term, September 16, 1861.

The plaintiff has manifested his election as to what parties he would look to as debtors.

The evidence, in my opinion, fully warrants the conclusion of the referee.

Mullin, J. concurred.

Judgment affirmed, with costs.

Clerke, Mullin and Leonard, Justices.]