
    William Delzer, Resp’t, v. The Buffalo Star Brick Co., Limited, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1892.)
    
    ¡Referee — Findings—¡Hot disturbed on appeal ip any evidence to SUPPORT.
    Where there is evidence to support the findings of a referee, they will not be disturbed on appeal, even though the appellate court conclude that such findings are against the weight of evidence.
    Appeal from a judgment entered upon the report of a referee herein in Wyoming county clerk’s office, January 25, 1892.
    
      Andrews & Hill, for app’lt; Clarence H. Bean, for resp’t.
   Lewis, J.

This action was brought to recover compensation for services and materials furnished by the plaintiff in the drilling of a well for the defendant in the town of Lancaster, Mew York, in pursuance of an oral agreement made by the parties, by the terms of which, as claimed by the plaintiff, the defendant agreed to pay him for drilling the well $1.50 per foot through earth and rock other than flint rock, and $3 per foot through flint rock; that he drilled the well and furnished certain materials by the direction of the defendant, and that defendant was indebted to him therefor in the sum of $163.31.

The defendant denied that it owed the plaintiff anything, and alleged that it was engaged in manufacturing brick at Lancaster, and wished to obtain for use in its business a well that would furnish a stream of water one inch and a half in diameter; that the plaintiff applied for the job of boring the well, and represented himself as skilled in locating subterranean water courses by the use of a plum, cherry, peach or witch hazel branch; that he represented to defendant that he could not only determine the location-of subterranean streams, but that he could ascertain their size, and the point where they crossed each other, by the use of a twig as aforesaid. That he claimed to designate a location near defendant’s brick yard, where he could by drilling reach the desired stream of living water, and agreed that if defendant would employ him to drill a well that he would guarantee a well which would furnish the required amount of water, and that in case he failed to furnish such a well, he would not charge anything for his labor and materialsand that upon these conditions he was given the contract to drill a well; that he bored a well, but that it was a failure, and did not furnish the agreed amount of water, but was in fact substantially a dry hole.

The plaintiff, while admitting that he represented to defendant. that with the use of one of the twigs mentioned he could perform nil the alleged representations, says that he did locate & large, living subterranean stream, but that because it was too remote from the brick yard to suit the defendant, he was directed by the defendant to bore at a place where the twig indicated a subterranean stream, but One of smaller dimensions; that he expressed to defendant his doubts of the propriety "of putting a well down at that place, and did not warrant success, but by defend-,antis -direction bored for the smaller stream.

Plaintiff testified that in his conversation with defendant he did .guarantee that he would reach a living stream, but did not agree .to reach one of the dimensions testified to by the defendant’s witnesses. That nothing was said about a well furnishing an inch ■and .a half stream.

The'defendant’s theory of the bargain was sustained by a number of witnesses, while the plaintiff’s,contention was supported by bis own evidence mainly.

The referee adopted the' plaintiff’s contention. • A perusal of the printed evidence leads our minds to the conclusion that the referee’s findings are against the weight of the evidence, but there being evidence to support his findings, and he having had the advantage of seeing and hearing the witnesses, his findings in our judgment shoul'd not' be disturbed.

The judgment appealed from should be affirmed.

Dwight, P. J., and Macomber, J., concur.  