
    SUPREME COURT.
    William Dibblee agt. Henry Maillard.
    Report of referee set aside as against the weight of admissible evidence, and new trial ordered.
    
      New York General Term,
    
    
      September, 1859.
   By the court, Roosevelt, Justice.

Although the sum awarded by the referee ($250) is not excessive in itself, it is out of proportion to the damage proved. We think the referee, while justly rejecting so much of the claim as was founded on the alleged injury resulting from heat, and from the condensed steam which penetrated the roof of the shed, which the plaintiff himself had constructed against the defendant’s wall, instead of building a wall of his own, has nevertheless unconsciously permitted the evidence on that point to aggravate the amount allowed by him for the alleged injury and annoyance in other respects, from the “ soot, smoke, steam and vapor which came from the chimney and steam escape pipe, into the yard and back windows of plaintiff’s house.”

We are reluctantly, therefore, compelled to set aside the report as against the weight of (admissible) evidence, and to order a new trial on payment of costs.

Order accordingly.  