
    Sipfle et al. v. Isham.
    
      (Supreme Court, General Term, Fourth Department.
    
    February, 1891.)
    Appeal—Review—Weisht of Evidence.
    Where the evidence is conflicting, the finding of the referee will not be disturbed on appeal.
    Appeal from judgment on report of referee.
    Action by Conrad Sipfle, Jr., and another against Alfred H. Isham on a promissory note given for $1,200. Upon the hearing, the testimony of Byron E. Loomis was given in respect to a conversation betwen “Isham and Stimpson in reference to Bundock’s patent refrigerator and butter cooler, in San Francisco. ” Among other things, the witness testified: “ I said to Mr. Isham: ‘ I suppose you have a real good thing.’ He said: • There ain’t money enough to buy it. We have an independent fortune out of it. Mr. Stimpson and I are going to have it.’ I said: ‘It will take plenty of money to run it.’ He said: ‘ We have plenty of money.’ He said: ‘We are going in as partners. We have the states of Louisiana and New York, and Mr. Stimpson is going there to sell territory of the places, and we have made arrangements with Mr. Bugby to that effect.’ * * * They were in together, and in all his conversation he stated, ‘We.’ He was the most enthusiastic of the two.” This evidence was repeated, in substance, on cross-examination. The witness added in his direct examination: “The whole conversation was that ‘we’ are going to make a fortune out of this business. In fact, I believe he told me that they had bought two states.” In his cross-examination he stated: “ ‘We’ are going to do this. ‘ We’have bought the two states. He said: ‘We are going in as partners.’ This is the impression I got. The exact words it would be difficult for me to remember. ” The referee found as a matter of fact “ that the defendants were co-partners, as far as the plaintiffs are concerned, at the time of the execution of said note of $1,200, and prior thereto, and at the time of making the contract out of which the note grew. ” As a matter of law he found “that the plaintiffs, for the purposes of this action, are copartners; second, that the defendants Albert G. Stimpson and Alfred H. Isham became and were partners under the name of Stimpson & Isham in the particular venture of the purchase of the patent for the states of New York and Louisiana, and the working of the same in said states.” Defendant appeals.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      E. A. Nash, for appellant. Homer Weston, for respondents.
   Hardin, P. J.

When this case was before us on a former appeal, (46 Hun, 366,) among other things, we said: “The referee does not find that Isham & Stimson were copartners, nor that Stimson, who made and signed and delivered the note to plaintiffs as a copartner or otherwise, was authorized by Isham to make the note in suit. * * * The plaintiffs planted themselves upon the averment that Isham was a partner. That was not proven, nor is it found by the referee.” Upon the proofs given, and the findings made by the referee, found in the present appeal-book, the case differs quite essentially from the case found in the former appeal-hook. It may be observed that the evidence is slight tending to sustain the conclusion of fact found by the referee in the last trial. However, as there is some evidence to sustain the findings, we are not inclined to interfere with the same. The referee has carefully considered the evidence, and weighed it in the light of the discussion of the authorities bearing upon the question involved, and delivered an opinion reaching a conclusion upon the evidence, which we are not inclined to disturb.

2. We have looked at the rulings made upon the trial, and we are of the opinion that they do not present such prejudicial error as requires us to disturb the report of the referee. Judgment affirmed, with costs. All concur.  