Godfrey v. . Moser

66 N.Y. 250

Opinions

In reviewing a decision of the General Term reversing a judgment entered upon the report of a referee, where it is certified that the order of reversal was made upon questions of fact as well as law, this court occupies the position of the General Term as to the facts, as well as the law. The Code provides that, "in that case, the question whether the judgment should have been reversed, either upon questions of fact or of law, shall be open to review in the Court of Appeals." The rule insisted upon by the appellant, that when there is conflicting evidence, and when there is any evidence to sustain the finding, it is error in the General Term to reverse the judgment, is not applicable in any case where the appellate court has a right to review the facts. When such review is proper, it is the duty of the appellate court to pass upon the facts from the evidence, and in this respect the duty is different from what it is in reviewing a judgment entered upon the verdict of a jury. In that case, the right of reviewing the facts is not conferred, and to reverse upon the facts, there must be an absence of any evidence to sustain the verdict; so in this court, in reviewing a judgment entered upon the report of a referee, in the absence of such certificate, the finding of facts is conclusive, if sustained by any version of the evidence which the referee was authorized to give it. In reviewing the facts, proper deference should be awarded to the judgment of the referee in cases of serious doubt, upon conflicting evidence, especially when it is propable that the appearance of the witnesses, or their manner of testifying, was, or might have been, controlling' in determining the questions; but these cases are rare, and, in general, it is the duty of the appellate court to take the responsibility of examining the evidence and determining the facts for itself.

We have examined the evidence, and are inclined to concur with the General Term upon the points taken by it. It is unnecessary to determine that, although the services stated by the plaintiff to have been performed, the value of which was proved, were greatly exaggerated, and, to some extent, the plaintiff's testimony discredited, yet the referee was not authorized to fix some value upon the services proved to have been rendered; but, under all the circumstances developed, we think that the evidence does not justify any thing like an allowance of $2,000 for the compromise, and the result reached by the General Term was substantially right, and, with this qualification, we concur in the opinion of DANIELS, J. It is possible that injustice may be done the plaintiff by his not going back for a new trial ordered by the court below. This court has no alternative, upon affirming the decision, but to order judgment absolute against him upon his stipulation. Having elected to have the "whole or nothing," we see no way of relieving him from the legal consequences of his act.

Judgment absolute must be ordered against the plaintiff.

All concur.

Order affirmed and judgment accordingly.