
    DUANE D. FOOTE, Appellant, v. HAMILTON BEECHER, Respondent.
    
      Illegal evidence— effect of its admission where it does not change the decision of the case— distinction between its effect in actions at law and in equity.
    
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The court at General Term, after holding that the referee erred in admitting certain evidence, said:
    “ The question, then, is whether there is sufficient evidence, irrespective of that which should have been excluded, satisfactory and conclusive in character, to sustain the finding of the referee, that the mortgage debt was not paid. The rules of evidence have been rigorously adhered to hitherto in actions at law. So it has been repeatedly decided that where illegal evidence has been admitted, bearing at all on the result, the error is fatal. (Worrall v. Par-melee, 1 N. Y., 519; Bawd v. Qillett, 47 id., 186; Siarbwd v. Barrons, 43 id., 200; Handley v. Hatter, 16 N. Y. S. 0. Rep. [9 Hun], 134; Bragner v. Lord, 4 Weekly Dig., 77; Williams v. Fitch, 18 N. Y., 546.) In the last case cited, Judge Comstock said, that although there was evidence, after rejecting that which was objectionable; sufficient to sustain the conclusion of the referee, this would not cure the error of its admission, that the party was entitled to the referee’s judgment upon testimony which was competent. But a more lenient rule has been adopted in equity actions. In this class of actions it is uniformly held that if evidence be improperly admitted, bearing on a fact abundantly made out by other and competent proof, a new trial will not be granted for such error. (Bennett v. Austin, 12 N.-Y. S. C. [5 Hun], 538; Platt v. Platt, 2 N. Y. S. C. Rep. [T. & C.], 25,26 ; Church v. Kidd, 10 N. Y. S. C. [3 Hun], 251-267; Forrest v. Forrest, 25 N. Y., 501-510; Clapp v. Fullerton, 31 id., 190; Patterson v. Copelamd, 52 How., 160.) After carefully examining all the evidence in this case, I confess myself entirely satisfied with the conclusion of the referee that the mortgage debt was not paid, and I reach this conclusion without considering the evidence above declared to be inadmissible.”
    
      Johnson <& Prescott, for the appellant.
    
      M. J. Shoecrqft, for the respondent.
   Opinion by

Bocees, J.;

Learned, P. J., and Boardman, J., concurred.

Judgment affirmed, with costs.  