
    PERRY v. DAVIS.
    Referee—Trial by—Findings of fact—Judgment upon modification of
    JUDGMENT.
   Dykman, J.

This is an action for the recovery of an amount due on a pro. missory note executed by the defendant to the plaintiff's testatrix and for money received by him for rent. The trial was before a referee, who found in favor of the plaintiff on the note; he found also that the defendant collected $3,100 for rent for the deceased, which he paid to her, or expended for her; he also found that the defendant advanced to the plaintiff the sum of $100 in her lifetime, and that his services in the collection of the rents were reasonably worth the sum of $105, but they were voluntarily performed. He deducted the sum so advanced by the defendant from the amount found due on the promissory note, and directed judgment for the balance. Both parties have appealed. The ■testimony teaches us that the findings of fact of the referee are all sustained except the finding that the services of the defendant in the collection of the rents for the deceased were voluntary; that finding is entirely unsupported and erroneous.

The judgment should be modified by the deduction therefrom of the sum of $105, and as so modified affirmed, without costs of this appeal to either party.

Barnard, P. J., and Cullen, J., concur.  