
    Loonam v. Myers.
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      June 7, 1886.)
    
    1. Appeal—From judgment on referee’s report—How facts to kb:
    reviewed.
    Where a party desires a review of the facts on an appeal from a judgment entered on a referee’s report he should have made requests to the referee to find such facts and have excepted thereto on his refusal. Where that is not done the general term can only look into the evidence to determine whether or not there was sufficient evidence to sustain the findings of fact excepted to and that such findings are not against the weight. of evidence.
    2. Same—Evidence—Review of bv court.
    Where it is sought to review conflicting evidence taken before a referee and which he has passed upon, the court has no right to conclude that because the story of one witness appears to he more straight forward than another, on paper, it embodies the truth of the matter in dispute, as opposed to the statements of another witness, which is marked by inaccuracies or - even inconsistencies. No tribunal will or can arrive at the truth from, such statements except the one that hears and sees the witness.
    3. Same—Reopening of case by referee discretionary.
    It is in the discretion of a referee whether he will reopen a case and allow other testimony, and Ms decision thereon will not be disturbed by the court unless the evidence sought to he introduced was newly discovered and of which the party was ignorant of at the time of closing the-testimony.
    - Appeal from a judgment dismissing plaintiff’s complaint,, entered on the report of Hon. Delano 0. Calvin, referee,. appointed in an action to foreclose a mechanic’s lien for work, labor and materials.
    The lien was filed July 19, 1884, for the sum of $7,017.98, a balance claimed to be due plaintiff for the reconstruction of certain premises in West Thirty-fifth street.
    Plaintiff claimed on a quantum meruit.
    
    Defendant claimed that the work was done under an agreement “to alter and repair the lower portion of the building described in the complaint, for a sum not to exceed $850,” in accordance with plans and specifications furnished by the architect, Jardine; that the work was not done in conformity with the plan; was left so incomplete as to be of little value, and that, before discovering the manner in which the work was done, he had paid the full contract price therefor.
   Bookstaver, J.

Plaintiff made no request to the referee to make any findings of fact, and only excepted to the following portion of the referee’s findings of fact:

“Fifth. That the plaintiff undertook and agreed to perform the work and labor, and furnish the materials for the alteration and repair of said building according to a plan thereof, called the Jardine plan, for $850, or less, provided he should use certain old lumber then on the premises, which old lumber he did use in making said alterations and repairs.

“Sixth. * * * It does not appear what would have been the value of that (the work) omitted, or what was the value of that performed, not required by said plans, nor were such deviations sufficient to indicate an abrogation of tiie agreement.

Seventh. That the plaintiff has been paid for said work, labor and materials by the defendant the sum of $850, and in full thereof, according to the agreement between the parties, and there is nothing due therefor from the defendant to the plaintiff.”

If the plaintiff had desired a review of the facts in this appeal he should have made requests to the referee to find such facts, and excepted thereto on his refusal so to do. Code Civ. Pro., § 1023; Hogan v. Laimbeer, 66 N. Y., 604, and 3 Weekly Dig., 27; Auburn City Bk. v. Hunsiker, 77 id., 252; Simmons v. Richardson, 5 Hun, 177; Smith v. G. F. Ins. Co., 62 N. Y., 85; Rogers v. Wheeler, 52 id., 262.

We can, therefore, only look into the evidence so far as to determine whether or not there was sufficient evidence to sustain the findings of fact excepted to by the plaintiff, and that such findings are not clearly against the weight of evidence. Sinclair v. Talmage, 35 Barb., 602; Russell v. Burton, 66 id., 539; Hoagland v. Wright, 20 How., 70; Scattergood v. Wood, 14 id., 269.

The testimony of the defendant in support of the first, finding of fact excepted to is that the plaintiff’s brother,. Bernard, came to defendant’s place to get the iob; that he told plaintiff he had showed the job to two different carpenters before him, and if he would make the price less than they did he would give it to him. Bernard said he would not give the price unless he had first seen the place. During that interview defendant showed him the estimate' made by O’Toole, who agreed to do the work for $850; that". Bernard read it; that they then went together to the architect’s to look at the plan, and afterwards to the premises to-look at the work to be done. After this Bernard Loonam said: “I will go back and step into Jardine’s again, and I will take the paper with me to my place * * * leave it with me over night, and in the evening I will carefully examine it and figure how much I will charge you.”

The next morning the plaintiff’s brother came to defendant’s place, and after some conversation it was finally agreed that plaintiff should do the work according to the Jardine plan for $850, provided he should be allowed to work in some of the old lumber.

The defendant is corroborated in his testimony by his-wife and daughter, both of whom testified to being present at a part of the conversations detailed by defendant; while-this is denied by the plaintiff’s brother, who claims that he drew the plans himself and that he would not give any figures for the work.

His own testimony clearly shows that the matter of the-cost of the work was discussed between the parties, and a. great deal was said about its probable cost.

The testimony of Bernard Loonam is sought to be corroborated by his mother, who testified that defendant came-to her house and told her to tell her son to go ahead with the work, and that she told him that her son gave no estimate of the work; to which defendant replied that he did not want him to.

Plaintiff also relies upon the fact that he actually expended for the work, as he claims, the sum of $1,867.08; and the testimony of John H. Carl, who made a rough estimate, and thought it would cost from $2,400 to $2,500 to do the work. And, also, on O. N. McG-lochhn, who made a rough estimation, and thought it was worth- $2,000.

While on behalf of defendant, Abraham R. Hopkins, and Alexander Moor, both practical carpenters, who measured the work and calculated the cost thereof, united in the opinion that the whole cost of the work, materials, etc., with 10 per cent for supervision, would be about $762.

We do not think there is such a preponderance of evidence in favor of the plaintiff as would lead us to set aside the referee’s finding upon this question of fact.

In respect to the second finding of fact excepted to, it. does not appear from the evidence that the plaintiff claimed or contended on the trial, that the contract between the parties, if any had been entered into, had been abandoned.

On the other hand, throughout the trial, he contended that no contract had been made between the parties, but that the work was done on a quantum, meruit.

The referee was not requested by the plaintiff to make any finding on the subject.

From the testimony it appears that the Jardine plan was handed to Loonam by the defendant, and he was ordered to do the work according to it; and that no modification of it was authorized by the defendant; nor was he ever told it was being changed.

The evidence also seems to show that the work was done substantially according to the Jardine plan.

Bernard Loonam being asked to compare the two plans,, and point out the differences between the Jardine plan and his own, pointed out only three differences. Two were omissions of work called for by the Jardine plan, and the-other merely a change in the location of the manure box. He also testified that the Jardine plan called for a new front, which was not put in, and that, by the Jardine plan, there was to be a hallway in the cellar, which was omitted.

J. M. Van Orden drew the Jardine plan, and after comparing the two plans, testified: “I should call one a rough copy, exactly, of the other.” He also testified that he had examined the work to see wherein it differed from his plan; that the original, or Jardine plan, called for a number of alterations and improvements on the building which were entirely omitted; that the stalls were smaller than called for by the Jardine plan.

The testimony in regard to these alterations is conflicting, and we think the evidence quite sufficient to sustain the referee’s finding. In regard to the last finding excepted to, it is admitted by plaintiff that he has received for the-work $850, and if the referee was right in regard to the two findings before noticed, the last follows, as a matter of course.

In the review of the case, we have not overlooked the fact that, according to plaintiff’s claim, the actual cost of the work, etc., was nearly double the amount of the contract price; nor the testimony regarding what the learned counsel for the plaintiff so strenuously urges, constituted extra work or deviations from the plans as originally proposed; nor the discrepancies in the testimony of the defendant and bis witnesses, pointed out by plaintiff’s counsel; and which he forcibly urged on us and from which he asked us to declare the defendant’s testimony unworthy of belief. But the difficulty in the way of our so doing is that the referee had all of these witnesses before him, and possessed better opportunities for judging of the credibility of the witnesses and the weight to be attached to their testimony than we could possibly have. We have no right to conclude that because the story of one witness appears to be more straightforward than another, on paper, it embodies the truth of the matter in dispute, as opposed to the statements of another witness, which is marked by inaccuracies, or even inconsistencies. No tribunal wifi or can arrive at the truth from such statements, except the one that hears and sees the "witnesses. Quincy v. Young, 5 Daly, 327; Hogan v. Laimbeer, 3 Weekly Dig., 27; Westloo v. De Witt, 36 N. Y., 340; Fellows v. Northrop, 39 id., 119.

The plaintiff excepted to each of the referee’s conclusions of law. But these inevitably followed from the facts found by him; and if he was right in his findings of fact he made no error in his conclusions of law.

Plaintiff objected to the admission of the estimate made by O’Toole being received in evidence. We think this untenable. Before this paper was offered, it had been proved that the paper had been shown to Bernard Loonam, and was the starting point of the negotiations between the parties. It was, therefore, properly admitted.

After the witness Bernard Loonam had been twice on the stand, and fully examined and cross-examined by the parties, and after the defendant had rested, and the case was nearly closed, plaintiff’s counsel again re-called him, asked him: Q. What is the work—the job, as it is done— compared with the Jardine plan?”

This was objected to by the defendant, and overruled by the referee.

At that stage of the case, we think it was within the discretion of the referee to allow plaintiff to re-open the case, which he would virtually have done by permitting the •question; and under the circumstances disclosed by the case, we do not think he abused that discretion.

After the close of the whole.case, and after two adjournments for the purpose of summing up, plaintiff moved to reopen the whole case, and for leave to call other witnesses. This motion was denied, and an exception taken.

This, too, was a matter in the discretion of the referee, and as the evidence sought to be introduced cannot be said to be newly discovered evidence, of which plaintiff was ignorant at the time of closing the testimony, we do not think we should reverse the judgment on that account.

We have examined the other exceptions taken by plaintiff but do not think any of them well taken.

The judgment must, therefore, be affirmed, with costs. Allen, J., concurring.  