Miller, J.
Upon the trial of this action the defendants,’ counsel objected to the admission of certain evidence offered
by the plaintiffs, and the decision of the referee was reserved in several instances until the close of the plaintiffs’ evidence, when the referee proceeded to dispose of the objections to the admission of testimony, the rulings on which had been reserved. He refused to decide as to the persons affected by some portions of the evidence, holding that these questions could only be determined when the whole evidence was in, and, to the extent named, overruled the objections made by the defendants’ counsel, who insisted that they were entitled to an absolute ruling upon the several questions, which the referee refused to give, and excepted to his several decisions thus made. Upon one of the rulings of the referee reversing his decision, defendants’ counsel excepted to the reservation. In the subsequent stages of the case the referee made similar rulings, declining to decide against which defendant the evidence was allowed; and, at the close of the entire testimony, he declined to decide any of the questions thus reserved, stating that this would be determined on the decision of the case.
Without enumerating the various rulings of the referee upon the questions stated, it is sufficient to say that he, among other decisions, refused to rule whether a memorandum received in evidence, the admission of which will be hereafter particularly considered, should be regarded as evidence against the defendant Bramhall alone, or against'all or any of the other defendants. He made the same reservation until the close of the testimony upon the question raised whether the acts or declarations of Clews were binding on the defendants other than the firm of which he was a member, also in respect to whether the letters written by Clews, and introduced upon the trial, were evidence.
The evidence which was thus admitted conditionally, and in regard to which the referee reserved his decision, affected the most important issues in the case, and the principal question involved, which was the liability of all of the defendants for the indebtedness, to recover which the action was brought. If the evidence tended to show the liability of any one of
the parties, it would be to that extent entirely competent. Whether it affected more than a single one, or all of them, could not well be determined at the time when the testitimony was introduced, and might depend upon evidence which was subsequently given which tended to establish the liability of the defendants. It cannot always be decided at the moment when such testimony is offered as to what effect it may have, and when this cannot be done, there is no objection to a reservation of the decision for the time being. Some discretion must be allowed to the judge or referee in regard to questions of this kind. Where the trial is before a jury in open court, there would be an eminent propriety in a decision by the judge as to the applicability of such evidence before the case is finally submitted to- their consideration; and then he should determine as to its effect in respect to any particular party, and give proper instruc-tions in regard to it upon being requested to do so. (See
Raymond
v.
Howland,
17 Wend., 389.) Under such circumstances, it is not apparent how the rights of the parties could be seriously affected by the reservation of the judge’s decision. Upon a trial before a referee, there appears to be far less urgent necessity for the decision of questions of this character, even at the close of the case. As he takes the place of the jury, he is to balance the testimony and decide where the weight lies; and in so doing, must determine to what extent the evidence thus objected to bears upon the different parties. He can make a proper discrimination as to how far it affects one or more of the parties in most cases; and if this can be done, no injury can result from such a course of procedure. It is not apparent in the case before us how the defendants’ interest could have been affected injuriously by the action of the referee, or their rights in any way impaired; and unless such was the case, no rule of law has been violated, and there is no legal error which will justify a reversal of the judgment.
An important distinction exists between the reservation of the question as to the effect of evidence and a reservation as
to its admissibility, and the question arises and is directly presented by one or more of the decisions of the referee, whether the party who raises an objection to evidence offered by his adversary has a right to have such objection passed upon absolutely at the time when it is presented, and whether the refusal to do so is erroneous. We have been referred to a number of decisions, mostly in the Supreme Court, which are supposed to uphold the doctrine contended for. Although the marginal notes of these cases, and the dicta of some of the judges appear to sanction such a rule, a critical examination will show that it has not been decided in any of them that a judgment must necessarily be reversed when the referee receives evidence reserving his decision.
(Clussman
v.
Merkel,
3 Bosw., 402 ;
Brooks
v. Christopher, 5 Duer, 216;
Peck
v.
Yorks,
47 Barb.,
131; Waggoner
v. Finch, 1 N.
Y.
S. C. [T. & C.], 145;
McKnight
v.
Dunlop,
5 N. Y., 537, 545.)
The precise question was not presented in any of the cases cited, and without discussing them more fully, it is sufficient to say that they are not in point. A contrary doctrine was held in
Kerslake
v.
Schoonmaker
(3 N. Y. [T.
&
C.], 524; 8 Hun, 436), where most of these cases are considered. As was held in the case last cited, if the decision of the referee might prove injurious, it would be liable to exception. There are cases where it is easy, to see that the admission of evidence in this form might embarrass the defence in determining to what extent testimony should be introduced in answer to that which has been admitted under such a restriction. And where the ease shows in any way that such a ruling would be prejudicial to the rights of the party objecting, it would be a subject of exception which would lead to a reversal of the judgment. It is quite as objectionable for a referee to make a mistake in his ruling, generally, as to make a decision reserving the question as to the admissibility of evidence which may in any way prejudice the party. As was well said in
Sharpe
v.
Freeman
(45 N. Y., 804), by Judge Folger: “It (the practice referred to) is then not to be commended, however, for it does not conduce to a clear and accurate trial of the action, nor to
the explicit presentation of the questions for review.” When 'rulings of this kind are made, they must be considered upon review, the same as if an objection had been made and overruled and an exception taken to the decision of the referee.
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Miller, J.
Upon the trial of this action the defendants,’ counsel objected to the admission of certain evidence offered
by the plaintiffs, and the decision of the referee was reserved in several instances until the close of the plaintiffs’ evidence, when the referee proceeded to dispose of the objections to the admission of testimony, the rulings on which had been reserved. He refused to decide as to the persons affected by some portions of the evidence, holding that these questions could only be determined when the whole evidence was in, and, to the extent named, overruled the objections made by the defendants’ counsel, who insisted that they were entitled to an absolute ruling upon the several questions, which the referee refused to give, and excepted to his several decisions thus made. Upon one of the rulings of the referee reversing his decision, defendants’ counsel excepted to the reservation. In the subsequent stages of the case the referee made similar rulings, declining to decide against which defendant the evidence was allowed; and, at the close of the entire testimony, he declined to decide any of the questions thus reserved, stating that this would be determined on the decision of the case.
Without enumerating the various rulings of the referee upon the questions stated, it is sufficient to say that he, among other decisions, refused to rule whether a memorandum received in evidence, the admission of which will be hereafter particularly considered, should be regarded as evidence against the defendant Bramhall alone, or against'all or any of the other defendants. He made the same reservation until the close of the testimony upon the question raised whether the acts or declarations of Clews were binding on the defendants other than the firm of which he was a member, also in respect to whether the letters written by Clews, and introduced upon the trial, were evidence.
The evidence which was thus admitted conditionally, and in regard to which the referee reserved his decision, affected the most important issues in the case, and the principal question involved, which was the liability of all of the defendants for the indebtedness, to recover which the action was brought. If the evidence tended to show the liability of any one of
the parties, it would be to that extent entirely competent. Whether it affected more than a single one, or all of them, could not well be determined at the time when the testitimony was introduced, and might depend upon evidence which was subsequently given which tended to establish the liability of the defendants. It cannot always be decided at the moment when such testimony is offered as to what effect it may have, and when this cannot be done, there is no objection to a reservation of the decision for the time being. Some discretion must be allowed to the judge or referee in regard to questions of this kind. Where the trial is before a jury in open court, there would be an eminent propriety in a decision by the judge as to the applicability of such evidence before the case is finally submitted to- their consideration; and then he should determine as to its effect in respect to any particular party, and give proper instruc-tions in regard to it upon being requested to do so. (See
Raymond
v.
Howland,
17 Wend., 389.) Under such circumstances, it is not apparent how the rights of the parties could be seriously affected by the reservation of the judge’s decision. Upon a trial before a referee, there appears to be far less urgent necessity for the decision of questions of this character, even at the close of the case. As he takes the place of the jury, he is to balance the testimony and decide where the weight lies; and in so doing, must determine to what extent the evidence thus objected to bears upon the different parties. He can make a proper discrimination as to how far it affects one or more of the parties in most cases; and if this can be done, no injury can result from such a course of procedure. It is not apparent in the case before us how the defendants’ interest could have been affected injuriously by the action of the referee, or their rights in any way impaired; and unless such was the case, no rule of law has been violated, and there is no legal error which will justify a reversal of the judgment.
An important distinction exists between the reservation of the question as to the effect of evidence and a reservation as
to its admissibility, and the question arises and is directly presented by one or more of the decisions of the referee, whether the party who raises an objection to evidence offered by his adversary has a right to have such objection passed upon absolutely at the time when it is presented, and whether the refusal to do so is erroneous. We have been referred to a number of decisions, mostly in the Supreme Court, which are supposed to uphold the doctrine contended for. Although the marginal notes of these cases, and the dicta of some of the judges appear to sanction such a rule, a critical examination will show that it has not been decided in any of them that a judgment must necessarily be reversed when the referee receives evidence reserving his decision.
(Clussman
v.
Merkel,
3 Bosw., 402 ;
Brooks
v. Christopher, 5 Duer, 216;
Peck
v.
Yorks,
47 Barb.,
131; Waggoner
v. Finch, 1 N.
Y.
S. C. [T. & C.], 145;
McKnight
v.
Dunlop,
5 N. Y., 537, 545.)
The precise question was not presented in any of the cases cited, and without discussing them more fully, it is sufficient to say that they are not in point. A contrary doctrine was held in
Kerslake
v.
Schoonmaker
(3 N. Y. [T.
&
C.], 524; 8 Hun, 436), where most of these cases are considered. As was held in the case last cited, if the decision of the referee might prove injurious, it would be liable to exception. There are cases where it is easy, to see that the admission of evidence in this form might embarrass the defence in determining to what extent testimony should be introduced in answer to that which has been admitted under such a restriction. And where the ease shows in any way that such a ruling would be prejudicial to the rights of the party objecting, it would be a subject of exception which would lead to a reversal of the judgment. It is quite as objectionable for a referee to make a mistake in his ruling, generally, as to make a decision reserving the question as to the admissibility of evidence which may in any way prejudice the party. As was well said in
Sharpe
v.
Freeman
(45 N. Y., 804), by Judge Folger: “It (the practice referred to) is then not to be commended, however, for it does not conduce to a clear and accurate trial of the action, nor to
the explicit presentation of the questions for review.” When 'rulings of this kind are made, they must be considered upon review, the same as if an objection had been made and overruled and an exception taken to the decision of the referee. It is not apparent that any of the decisions which were reserved by the referee could have affected the rights of the defendant injuriously so as to render them liable to objection, and they therefore do not present any legal ground for a reversal of the judgment.
But a single objection is urged to the testimony which was received unqualifiedly, and that relates to the memorandum which was offered and received as evidence. It was objected to not only upon the ground that it was not evidence against any of the parties but Bramhall, or against any member of the firm of Livermore, Clews & Co., except Mr. Clews, but for the reason that it was proved that the contract was outside of the memorandum. The referee reserved his decision as to the first and second grounds, and overruled the objection as to the third ground. In a subsequent stage of the case a motion was made to strike it out on grounds which were stated and overruled. The remarks already made as to the right of the referee to reserve his decision under the circumstances are a sufficient answer to the first two objections made to its introduction. The other objections now urged will be further considered. The memorandum related to the terms of the purchase of the Frostbnrgh Coal Company. It stated the amount of capital stock, the number of shares and the price, and that cash was to be paid upon delivery. It also stated that Messrs. Lathrop and Graham were to have a certain number of shares which were named at cost, as well as certain other matters which it is not material to recite. This paper alone of itself was of but little, if any, importance, as there was no particular contradiction as to the terms of the purchase, without oral evidence to establish that the purchase was a joint one, and made for the benefit of all the defendants. The evidence in regard to it tended to show that at the time of the alleged meeting of the parties when the sale was made, Bramhall,
one of the defendants, made this written memorandum, which was found among his papers, and read it over to those who were present, inquiring whether it was correct or whether the- parties who were present should take the stock which was then sold. It was not offered to refresh the memory of the witness, and was not admissible in that point of view, and the rule applicable to such a case cannot be invoked, nor was it competent alone as the contract of the parties, but it was evidence which corroborated and confirmed the oral proof as it coincided with it as to the terms of the contract. The two together showed what the contract was, and there can be no valid objection where an oral contract is made to prove that its principal terms were written down and a memorandum made of them and read'at the time. The one isnot a substitute to the other, and both are properly admissible without violating any rule of law. It is not a case where a valid contract is made in writing which entirely supersedes the oral contract, but one where an oral contract is entered into and a memorandum made at the time as to its general features and characteristics. Regarding it in this light there would be no reason for striking out the oral testimony as was asked upon the trial in reference to the same matter.
An objection is made that the memorandum was not properly identified. There was evidence to show that it was in Bramhall’s handwriting, and that it was the memorandum made at the meeting, and if there was any defect in this respect the testimony of Bramhall, as to its identity, was of such a character as to render it a fair question for the referee to determine whether it was sufficiently identified. It cannot be claimed that there was such an entire absence of evidence in regard to it as would authorize its rejection for the reason stated, and as there was at least some evidence, it was for the referee to decide as to the weight to be given to the testimony which related to its identity.
It is not the province of this court to consider the weight of the evidence upon the question of the joint liability of
the defendants. That duty belonged to and has been discharged by another tribunal.
As no legal error was committed upon the trial, the judgment must be affirmed, with costs.