
    Theodore D. Fowler, Resp’t, v. John E. Van Natta, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed September 23, 1893.)
    
    Contbact—Weight of evidence.
    In' an action for services plaintiff testified that no agreement as to wages, was made. Defendant’s witness who made the arrangement testified that plaintiff was to receive the same as the person whose place he took, and there was evidence of plaintiff’s admissions to the same effect; but it appeared that the services rendered by plaintiff were more responsible than; those of his predecessor, and worth considerably more. Held, that the. decision of the referee in plaintiff’s favor would not be disturbed by an appellate court as against the weight of evidence.
    Appeal from judgment in favor of plaintiff, entered on the report of a referee.
    
      Frank M. Leary (M. N. Tompkins, of counsel), for app’lt; Charles H. Everts, for resp’t.
   Parker, J.

This action is brought to recover for services rendered by the plaintiff for the defendant from April 1, 1885, to-the 1st day of April, 1888. The defendant was the owner of a. summer resort on Cayuga lake, and the plaintiff lived upon the premises, and cared for the same, during the winters, and rendered services in various capacities during summers, when the place-was open for business. The plaintiff claims that he went there and rendered the services at the request of the defendant, but that no price was ever agreed upon between them as to what he should be paid. The defendant concedes that the services were rendered at his request, but claims that they were rendered at a price agreed upon between them at the time the hiring commenced, and that such price has been fully paid. - The action was tried before a referee, who found for the plaintiff to the full amount of his claim, and from the judgment entered on the report the defendant brings this appeal.

The main question presented to us is whether the evidence sustains the referee’s finding that no agreement for price was ever made between the parties, and that, therefore, the plaintiff was entitled to recover what the services rendered were fairly worth. Snch question is purely one of fact. There is a decided conflict in the direct evidence upon it. Mack testifies that he made the bargain for the defendant with the plaintiff, and that his wages were to be the same as Dann’s, whose place lie took, yet plaintiff as positively denies that anything was said by Mack about wages. It may be that the fact that Mack was apparently disinterested,, and that the evidence of one or two other witnesses as to the-plaintiff’s admissions make what appears on paper to give the weight of evidence to the defendant, yet, if we had heard the witnesses, and had an opportunity to judge of the credit to be given to each by seeing them on the witness stand, we might very easily see why the referee has given credit to the plaintiff, rather than to Mack. The talk with Mack was in the fall of 1884, and may well be claimed to have been for no longer than the following spring. The services rendered as superintendent were much more responsible than those rendered by Dann, and, the evidence shows, were worth considerably more. Upon all the evidence, we cannot say that it is a case where, within the rules laid down by the decisions, an appellate court should interfere with the conclusions of the referee. Westerlo v. De Witt, 36 N. Y., 340, 345 ; Baird v. Mayor, 96 id., 567 ; Devlin v. Greenwich Sav’gs Bank,125 id., 756 ; 35 St. Rep., 922; Beckwith v. N. Y. C. R. R. Co., 64 Barb., 308; Roosa v. Smith, 17 Hun, 138; Thompson v. Vroman, 49 St. Rep., 537. Nor do we think there was any error in the refusal of the referee to find the facts requested by the defendant, or in his rulings upon the admission of evidence, that warrants the granting of a new trial.

As to the request concerning the oats, the evidence does not warrant the conclusion that the plaintiff mixed them with his own with the fraudulent purpose of using them, or that he fed them to his horses, in fraud of the defendant. As to the baskets, if he did take them when he left the defendant’s employment, we do not think it would be such an act as would bar his action for the recovery of wages due him. It was an act done after his employment ceased. As to the evidence admitted under defendant’s objection, it seems to be so utterly immaterial that no possible effect could have been given it prejudicial to the defendant’s case. We conclude, therefore, that the judgment must be affirmed, with costs.

Hardin, P. J., and Merwin, J., concur.  