
    Emily Guion, Resp’t, v. William H. Mundy, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 4, 1892.)
    
    1. Appeal—Case.
    A statement in a case on appeal that it “does not contain all the evidence taken on the trial. There was additional evidence for the defendant which was cumulative.” does not exclude a presumption that evidence for plaintiff which does not appear in the case sustained the facts found; and does not permit the appellate court to inquire as to the sufficiency of the evidence to support those facts.
    2. Trial—Affirmative defense—Dismissal.
    Defendant set up as an affirmative defense an alleged agreement that no accounting for the moneys in question should be had until the termination of a litigation which was still pending. The evidence to establish such agreement consisted of defendant’s testimony and that of witnesses as to admissions of plaintiff, and her silence when such arrangement was mentioned in her presence. Plaintiff denied making the agreement. Held, that a refusal to dismiss was proper, and that this court should not disturb the finding of the referee.
    
      Action to recover money loaned by plaintiff to the defendant, her attorney, the defenses being that by the terms of an alleged agreement no accounting was to be had between the parties until the determination of a certain litigation pending at the time of the commencement of this action and of the trial, and that the sum loaned was pursuant to plaintiff’s directions applied to the payment of expenses incurred by the defendant, and services rendered by him at the request of the plaintiff. The answer also contained á counterclaim for the value of such services and the amount of such expenses.
    
      Richard W. Newhall, for resp’t; William H. Mundy, for app’lt.
   Bischoff, J.

At the end of the case on appeal there appears

the following: “ This case does not contain all the evidence taken at the trial. There was additional evidence for the defendant which was cumulative.” Obviously this does not exclude a presumption that evidence for the plaintiff, which does not appear in the case, abundantly sustained the facts found by the referee, and the absence of a statement that the case contains all the evidence precludes us from all inquiry as regards the sufficiency of the evidence to support those facts. Aldridge v. Aldridge, 120 N. Y., 614, 616; 31 St. Rep., 948.

The facts found being conclusive upon us and amply sustaining the referee’s conclusions of law, we are left to examine the exceptions taken by defendant upon the trial for ground for reversal of the judgment appealed from.

At the close of the testimony defendant moved to dismiss the complaint on the sole ground that it then appeared that plaintiff was precluded from maintaining this action because of her alleged agreement to forbear the collection of the sum loaned to the defendant until after the determination of the pending appeal in the Wellman litigation, and that it should be first applied by the defendant in discharge of the obligation of one of the sureties on said appeal as such. This motion was denied, and properly.

The making of this alleged agreement constituted an affirmative defense and was pleaded as such; and to have authorized a nonsuit or dismissal of the complaint, it was incumbent upon defendant to have established it by undisputed and unimpeached evidence, or by a clear preponderance of the evidence. The contrary, however, appears. No written assent on the part of the plaintiff to such an agreement was produced, and she denied emphatically that she ever made or authorized it, or that she knew at any time that it was entered into on her behalf. For the defendant the evidence relied upon to establish the alleged agreement consisted of his own testimony, which.in itself was liable to discredit because that of an interested party, and the testimony of several witnesses to admissions alleged to have been made by her and her silence when such an arrangement was mentioned in her presence. Taken as a whole, the testimony of these witnesses is of such an unsatisfactory character that within the rule laid down in Baird v. Mayor, etc., 96 N. Y., 567, the conclusion of the referee respecting its credibility ought not to be disturbed.

Of the four remaining exceptions none are discussed upon, appellant’s belief, nor were they referred to on the argument of the appeal, and upon examination they appear to be too frivolous to merit discussion.

The judgment appealed from should be affirmed, with costs.

Pryor, J., concurs.  