
    In the Matter of the Estate of Catharine A. Valentine, Deceased.
    
    
      (Court of Appeals,
    
    
      Filed November 29, 1892.)
    
    Appeal—New trial.
    A referee to whom, a disputed claim against an estate, consisting of two loans, was sent, decided that one of the loans was not proved to, have been made upon a usurious agreement, but held that the second loan was usurious and could not be recovered. The special term confirmed his report as to the second loan but reversed it as to the first, and ordered a new trial. This was affirmed by the general term, but on appeal to this court the creditor gave no stipulation for judgment absolute. Held, that the appeal from so much of the order as awarded a, new trial must be dismissed because of such omission.
    Appeal from judgment of the supreme court, general term, first department, affirming order of the special term partly overruling and partly confirming the referee’s report.
    
      Wm. G. Low, for app’it; Horace Secor, Jr., for resp’t.
    
      
       See 45 St. Rep., 758.
    
   Finch, J.

An alleged creditor of the deceased presented a claim against the estate for two loans of six hundred dollars each, which the administrators disputed and which, thereupon, were sent to a referee for a hearing and determination. Upon such hearing the sole defense was usury. The referee decided that the first loan was not proved to have been made upon a usurious agreement and ordered judgment for that amount with interest, but further held that the second loan was usurious and could not be recovered. The special term confirmed the report as to the second loan, but reversed it as to the first and ordered a new trial. The creditor appealed to the general term, which affirmed the order, and again from that affirmance to this court, but without giving the required stipulation for judgment absolute.

The appeal from so much of the order as awarded a new trial must be dismissed for that reason. Upon the facts disclosed we are quite strongly impressed with the view taken by the referee, but at all events the defeated creditor must take her new trial or go without remedy for the recovery of the first loan.

As to the second, the finding of fact concludes us, and is so supported by the evidence as to make quite immaterial the testimony which the referee struck out and as to which the creditor complains. That some interest was lost by her through a withdrawal of the money from the savings bank might by possibility have a bearing upon the first loan, which was for a year, but none upon the second, which was for no defined term of credit, but was payable presently and might have been demanded at once, or suffered to run for years, drawing all the time interest at eight per cent. The written memorandum, made apparently at the date of the loan and expressing its terms, could not justly be overcome by the evidence stricken out.

The appeal from so much of the order as awards a new trial is dismissed, and the order in other respects affirmed, with costs.

All concur.  