Meyers v. Betts

5 Denio 81

Opinion

Per Curiam.

The counsel for the defendant alleges various errors in the report of the referee, which is sought to be set aside. Among other things, it appears that on the trial of the cause, the referee decided that the proof made by the defendant was sufficient to authorize his books to be received in evidence, and they were received accordingly. It is very likely that in this he may have erred, but they were received,, and thereupon the defendant gave no further proof of his account. The effect of this decision was of course to lull him into security Non constat that if the decision had been against him, he might not have introduced other and more conclusive evidence. After the trial is ended, and the parties are gone, the referee reviews his decision, and comes to an opposite conclusion, and decides to exclude the books as testimony. This will not answer. The rights of parties may be seriously compromitted by such a practice, and it might lead to serious abuse if a judicial tribunal, on the trial of the cause, should receive testimony which in a subsequent stage of the case determined- it to disregard. The report of the referee must be set aside.(a)

Motion granted

Footnotes

(a)

See Seeley v. Barnes, (4 Denia, 73.)