People ex rel. Nichols v. Miller

255 A.D. 373, 7 N.Y.S.2d 588, 1938 N.Y. App. Div. LEXIS 4744

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 18, 1938
• Status: Published

Opinion

Per Curiam.

An examination of the record establishes that the relators made out a prima facie case and sustained the burden of proof by a fair preponderance of the evidence which the referee to whom the issues were referred found to be credible. The presumption on which defendants rely was overcome, but at the close of relators’ case defendants rested and offered no proof whatever, though defendants’ expert was present at the trial. In that state of the record it was error for the Special Term to refuse to confirm the referee’s reports.

The orders of the Special Term should be reversed, with twenty dollars costs and disbursements, and the motions to confirm the referee’s reports granted.

Present — Martin, P. J., O’Malley, Townley, Glennon and Dore, JJ.

Orders unanimously reversed, with twenty dollars costs and disbursements, and the motions to confirm the referee’s reports granted. Settle order on notice.