
    S. Fleet Speir v. Frank Little.
    Sup. Ct., 2 D.,
    December 2, 1895.
    
      Niles & Johnson (Wm. W. Niles, of counsel), for app’lt; Walter G. Low (AZbert F. Lamb, of counsel), for resp’t.
   Dykman, J.

This is an appeal from a judgment entered upon the report of a referee. The action is for an accounting. Both parties to suit are physicians, and the defendant went into the service of the plaintiff in May, 1883, under an agreement to aid the plaintiff in his practice. The first agreement was in writing, and prescribed the salary of the defendant, and provided for his disbursements; but that agreement was modified at different times. The complaint charged the defendant with attending to patients outside of his practice and retaining the money received therefor in violation of his agreement. The answer of the defendant to that charge was that such practice, and the retention of the money received therefor, was in pursuance to an agreement with the plaintiff. Upon that issue the parties went to trial, and it was decided against the plaintiff. The defendant supported his position by his own testimony, and by evidence of other witnesses, and by corroborai ive circumstances. The plaintiff, in his testimony, confirms much of the defendant’s evidence, and the statements rendered by the latter to the firm, and his acquiescence in them, is quite corroborative of the theory of the defendant. In a case like this, involving questions of fact only, where the testimony is plain, it is seldom necessary to recapitulate or analyze the evidence. The referee has made full findings, and we find, upon a careful examination of the case, that they are well sustained by the proof. Judgment should be affirmed, with costs. Brown, P. J., concurs. Pratt, J., not voting.  