
    Abbott v. Thomas et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    July 2, 1889.)
    Reference—Practice—Abstract of Evidence.
    A referee is justified in refusing to certif)r that a brief abstract contains all the evidence given in support of his findings of fact to which exceptions are taken.
    Appeal from special term, Kings county.
    Action by George B. Abbott, as administrator of Eunice Chapman, against Margaret J. Thomas and others, to recover for money loaned. The action was tried by a referee, who directed judgment dismissing the complaint. This appeal is from an order denying plaintiff’s motion to resettle case on appeal, and refusing to send it back to the referee for resettlement.
    Argued before Barnard, P. J., and Pratt and Dykman, J.J.
    
      Burnett & Whitney, for appellant. Deane & Chamberlain, (Cephas Brainerd, Jr., of counsel,) for respondents.
   Barnard, P, J.

Upon the trial of the issue before the referee, a large mass of testimony was taken. The referee made 34 findings of fact, and thereupon dismissed the complaint, with costs. The plaintiff excepted to the fourth finding, which was that George M. Chapin was the agent of Eunice Chapman “in all matters and things referred to in this action.” This exception is applied, so far as respects this agency, to the fifteenth, nineteenth, twentieth, twenty-third, twenty-fourth, twenty-fifth, twenty-sixth, and the fifth finding. An exception is also taken to the twenty-eighth finding. The case, as proposed, is an abstract of some six folios. The referee refused to insert in it that it contained all the evidence given in support of the findings of fact to which exceptions are taken. The plaintiff’s attorney swears that this abstract contains the scope of the case. The defendant’s attorney makes an affidavit that the greater part of the evidence to sustain the findings is omitted. The evidence actually given is not presented. It is for the referee to settle the ease, and upon this paper the inference is plain that he is right in withholding his official certificate that the case contains all the evidence in support of the findings. From our knowledge of the trial of cases it is evident that the abstract should not be deemed to contain all the evidence. The referee did right in refusing to exercise so dangerous a power as to determine that- the brief abstract represented all the evidence on the trial in support of the findings in question. Order affirmed, with costs and disbursements, and motion denied, with $10 costs. All concur.  