
    Opdyke v. Whiting et al.
    
    
      (Supreme Court, General Term, Fifth Department.
    
    October 19, 1889.)
    Reference—Report—Review on Appeal.
    Where there is evidence to sustain a referee’s findings, and there are no exceptions to bis findings, or requests to find differently on the evidence, a judgment entered on the report of the referee will not be disturbed on appeal.
    Appeal from judgment on report of referee.
    Action by Zachariah Opdyke against W. Fred Whiting and others. Judgment was entered in Cayuga county on the report of a referee in favor of plaintiff, and defendants appeal.
    Argued before Dwight, Macomber, and Childs, JJ.
    
      James Lyon, for appellants. E. C. Atkin, for respondent.
   Macomber, J.

If there is evidence to sustain the conclusions of the referee the judgment must be affirmed, because there are no exceptions to his findings, and no requests were made to him to find differently than he has upon the evidence before him. The action is brought to recover for services from the 3d day of May, 1886, for a period of one year, and for damages for an unlawful dismissal of the plaintiff as salesman at a time prior to the expiration of the term of the service. The plaintiff was employed by the defendants, who are in the milling business, to make sales for them of flour and feed, on the 3d day of May, 1886, and was dismissed from such employment on the 15th day of September of that year. The referee has found in favor of the defendants in respect to any claim for damages or compensation for time after September 15th. He has, however, allowed the plaintiff a certain sum as a balance for his services remaining unpaid. There is no dispute in the case in regard to the right of the plaintiff to the compensation claimed by him for the selling of feed, except that it is contended by the defendant that the plaintiff was fully paid for such sales. The referee has found that the plaintiff was to receive 15 cents per barrel for flour upon every first order of 100 barrels or less, and 10 cents per barrel upon every other order thereafter from the same customer, and 10 cents on all orders above 100 barrels, and 40 cents per ton for all feed sold by him. He has found that, during the period mentioned, the plaintiff sold 450 barrels upon which he was entitled to a commission of 15 cents; 1,200 barrels upon which he was entitled to a commision of 10 cents; 67J- tons of feed, upon which he was entitled to a commission of 40 cents,—making, in all, $240.15, for sales personally and actually made by himself. He has also found that the defendants effected sales of 500 barrels of flour to customers which the plaintiff himself had secured, and to whom he had introduced the defendants, for which he has given the plaintiff an allowance of $50, or 10 cents per barrel. Taylor v. Enoch Morgan's Sons' Co., 1 N. Y. Supp. 293. After deducting the payments which were made by the defendants, there is found to be due the plaintiff a balance of $85.99, with interest from the date of the beginning of the action, for which judgment was given.

The question before the referee was solely one of fact, and his decision is based upon the testimony of apparently reliable witnesses. There being no requests to the referee to make findings different from those appearing in the case, and no exceptions to the findings so made, the judgment ought not to be disturbed. We have examined the several exceptions taken during the trial to the refusal and rejection of evidence, and find in them nothing which requires comment, or which would affect the conclusion of the referee upon the questions in chief. The judgment should be affirmed. All concur.  