
    Second Appellate Department,
    March, 1900.
    Reported. 49 App. Div. 630»
    Henry H. Lyman v. Edward Perlmutter and Fidelity and Deposit Company of Maryland.
    Appeal from a judgment entered upon the report of a referee.
   Pee Cubiam.

We have been addressed by an argument which asks us to overrule the decisions of the Supreme Court in the first and fourth Departments. (Lyman v. Rochester Title Ins. Co., 37 App. Div. 234; Lyman v. Brucker, 26 Misc. 594; affirmed on appeal, 42 App. Div. 624; Lyman v. Shenandoah Social Club), 39 App. Div. 459.) The argument, of the learned counsel for the appellant in support of his contention is forcible and able, but all of the views therein taken seem to have been met and answered by the decisions already rendered; and if we were doubtful of the correctness of such answer, its overthrow, if it be overthrown, must properly come from the court of last resort.

The evidence in the case is conflicting, and that adopted by the referee is not only contradicted, but in many respects contradictory. Nevertheless, there was clearly sufficient for him to-render the judgment appealed from, and this court is powerless to interfere. (Baird v. Mayor of New York, 96 N. Y. 567.)

The judgment should therefore be affirmed.  