
    John Irlbacker and Jacob Davis, Respondents, v. Philip W. Roth, Appellant.
    
      Agreement to take back at any time stock subscribed for — the decision of a referee, upon conflicting evidence, must stand — measure of damages—the Statute of fflwuds must be pleaded.
    
    The decision of a referee, upon the question whether the defendant, the president of a corporation, agreed at any time, upon request of the plaintiffs, to take back certain shares of the stock of the corporation for which he had induced them, to subscribe, when the evidence in respect thereto, is sharply conflicting and is sufficient to sustain the decision, will not be disturbed on appeal.
    In such a case the plaintiffs are entitled to interest on the amount paid by them for the stock from the date when they demanded that their stock should be taken back.
    The Statute of Frauds is not available as a defense unless it is pleaded.
    ■ Appeal by the defendant, Philip W. Roth, from a judgment of the Supreme Court in favor of the plaintiff’s, entered in the office of the clerk of the county of Erie on the 28th day of June, 1897, upon-the. report of a referee, for $3,295.08 damages, besides costs.
    Exceptions were filed to the referee’s report. Ho motion for a non-suit appears in the appeal book. The case contains all the evidence.
    
      Moses Shire, for the appellant.
    
      Warren F. Miller, for the respondents.
   Hardin, P. J.: .

In August, 1893, the defendant was president of the South Buffalo Ratural Gas Company, having been instrumental in. its organization, and was at the same time the owner of quite a large block of its stock, and with a view of obtaining the, plaintiffs’ subscription for some of what was denominated “ Treasury Stock,” held ■ an interview with them and made certain representations and statements which induced the plaintiffs to subscribe for thirty shares of the capital stock of such company. ■

In his findings of fact the referee says : “ That in the month of August, 1893, the defendant applied to the plaintiffs to subscribe for and take thirty shares in the capital stock of tlie South Buffalo Ratural Gas Company, and as an inducement to the plaintiffs to subscribe for and take said shares of stock the defendant did then and there promise and agree that he would at any time, upon request of the plaintiffs, take said stock off their hands and pay them the face value for the same. That the plaintiffs, relying upon the said promise of the defendant, did subscribe for said stock and did pay therefor the face value thereof, to wit, the sum of three thousand dollars.”

The referee finds that the plaintiffs subsequently demanded of the defendant “ that he should take back said stock and pay them the face value thereof, and the defendant has wholly neglected to comply with said demand.”

. We find upon a careful perusal of the evidence offered by the plaintiffs in support of their allegations, and upon an examination of the evidence offered by the defendant tending to gainsay the same, that a sharp conflict was presented upon the principal questions of fact which the referee was required to pass upon. He saw the witnesses; heard their examinations and cross-examinations, and was furbished with an opportunity to judge of them quite as correctly as we are able to judge of them and of their truthfulness by an inspection of the record of their evidence. We see no occasion to differ from the conclusion, upon the evidence, reached by the referee. His findings are supported by evidence, and we think that we ought not to reverse filie same as being against the weight of evidence. Applying to the referee’s findings, and the evidence based thereon, 'the rule which has been laid down in numerous cases, we think it our duty to accept the conclusion stated by the referee.

In Roosa v. Smith (17 Hun, 139) it was said that the court cannot, “ in a doubtful case, upon conflicting evidence, like the one under review, assume the place of the referee and determine, from the mere reading of the evidence, who has told the truth, or is best entitled to credit. This would be imposing upon us a duty unsafe to exercise and dangerous in its ordinary use. It would make of a referee to try an issue simply a referee to report the testimony to this court, which, in such cases, would review nothing but the evidence, giving such a decision as 'in its judgment upon the evidence is just'. We understand this court has the power to examine the evidence and t'hevfind:itig of facts in cases tried before a referee or the courts ; that' it lias (the power, and it is its duty, to interfere when facts have been found without evidence, or clearly against evidence; but we do not understand it can be called on in doubtful cases upon, conflicting evidence, depending upon the character and credibility of witnesses, to review and readjust the facts upon the evidence as it shall appear to it on paper.”

The rule laid down in the language which wre have quoted has been followed in numerous cases, and we think should be applied to the case in hand. (Penfield v. Sage, 71 Hun, 575; Sackett v. Thomas, 4 App. Div. 448 ; Slattery v. Haskin, 3 id. 50; Barnard v. Gantz, 140 N. Y. 249, 253; Teeter v. Teeter, 47 N. Y. St. Repr. 580.)

The defendant did not set up the Statute of Frauds, and, therefore, was not in a situation to raise that question at the trial. (Crane v. Powell, 139 N. Y. 379 ; Bowdish v. Briggs, 5 App. Div. 594; Simis v. Wissel, 10 id. 323.)

The findings of fact made by the referee warranted his conclusion of law that the plaintiffs were entitled to recover $3,000 and interest from the 8th of November, 1895,, that being the time when the defendant was requested to take the stock back from the plaintiffs- and reimburse them. (Wooster v. Sage, 6 Hun, 285, opinion of Talcott, J.; S. C. affd., 67 N. Y. 67; Allen v. Eighmie, 14 Hun, 559; S. C. affd., 79. N. Y. 632; Fitzpatrick v. Woodruff, 96 id. 564; Eno v. Woodwoorth, 4 id. 249.)

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  