
    EDMUND A. SMITH, et al., Plaintiffs and Respondents, v. GUSTAVUS ISAACS, Defendant and Appellant.
    Judgment will not be reversed for the refusal of the court to grant a nonsuit or dismiss the complaint, when the plaintiff rested his case, although at that time plaintiff had failed to prove his case; provided that afterwards during the progress of the trial, the necessary evidence was supplied by either party (Schenectady & Sara-toga Plank Hoad Co. v. Thatcher, 11 H. Y. 102, per Johnson, J.; Kent v. Harcourt, 33 Bari. 491; Colvin v. Burnet, 2 Hill, 620; Hearsey v. Pruyn, 7 John. 179).
    Before Freedman, Curtis and Speir, JJ.
    
      Decided January 31, 1874.
    Appeal by defendant from a judgment entered in favor of the plaintiffs, upon the report of a referee.
    The action was brought to recover a balance due upon an account for goods sold and delivered under a special contract.
    
      A. R. Dyett and G. A. Seixas, for appellant.
    
      William C. Barrett, for respondents.
   By the Coubt.—Fbeedmah,

The issues in this case seem to have been fully, ably and fairly tried. They were determined upon a theory which in the main is correct. The facts found by the learned referee, although mostly found upon conflicting testimony, are supported ■ by the evidence, and his conclusions of law legitimately follow from the facts thus found. No error was committed in refusing to find as requested by the defendant.

If the reception in evidence of the book of plaintiffs’ foreman constituted error, it will not avail the defendant, for the reason that he did not rest upon his exception, but that in the course of the defense he himself supplied the evidence upon which, independently of the said book, the referee rendered judgment. A judgment will not be reversed for the refusal to grant a nonsuit, though the plaintiff had at the time failed to prove his case, if the necessary evidence was supplied afterwards by either party (Schenectady & Saratoga It. It. Co. v. Thatcher, 11 N. Y. [1 Kern.] 102, per Johhsoh, J. ; Kent v. Harcourt, 33 Barb. 491; Colvin v. Burnet, 2 Sill, 620; Hearsey v. Pruyn, 7 Johns. 179).

The judgment should be affirmed, with costs.

Cubtis and Speib, JJ., concurred.  