
    Spencer D. C. Von Bockelen, Resp’t, v. Robert H. Berdell, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 10, 1888.)
    
    
      1. Appeal—Decision op referee—Review.
    Where the evidence before a referee is conflicting as to the validity of an item of credit, the referee’s decision on this question cannot be reviewed on appeal.
    3. Partnership—Accounting—Firm books—Evidence.
    Where, on an accounting between partners, credit for a certain real estate transaction was claimed by plaintiff and denied by defendant, and on cross-examination of defendant an entry was shown him in the partnership books which was supposed to be at variance with his denial, Held, that plaintiff might introduce the single entry as to this item without being compelled to put the whole book in evidence.
    .3. Witness—Impeachment—What a harmless error.
    Where evidence was given for the purpose of impeaching defendant, and he was asked if he had not been indicted for perjury, and if certain suits had not been decided against him, he admitting the indictment but denying the result of the suits as claimed, Ééld, that the admission of the evidence was harmless
    4. Same—Impeaching witness—Hostility of—Cross-examination.
    Where, after the evidence was given tending to impeach defendant, he testified that there was hostile feeling between him and certain of the impeaching witnesses, and as to one of them a false report had been circulated that he (defendant) had slandered his daughter, and also that he had slandered other girls, and that these false reports had created bitter feelings in the community, Held, that on cross-examination it was proper to ask him if he had not also been charged with having committed adultery with a girl in the same place.
    Appeal from a judgment entered on the report of a reference at special term Kings county.
    Motion for settlement of partnership accounts after dissolution. The action was commenced twenty years ago and a reference was made to John R. Lawrence, who made a report which was confirmed by the court, and a re-reference was ordered for further accounting—Lawrence died, before making his second report and Horatio C. King was appointed to take the accounts. The report of King found a balance in favor of plaintiff of $10,369.49, which was confirmed, and defendant appeals.
    The defendant’s chief complaint is that the referee erred in not allowing him a certain credit, as to which credit there was a great conflict of evidence, plaintiffs contention being that the entries relating thereto were false and fraud ulent. Evidence was offered, tending to impeach defendants reputation for truth and veracity. After this evidence defendant testified that certain of the witnesses who had sworn they would not believe him under oath were person ally hostile to him; that one witness, living in Groshen, had a daughter whom it was falsely reported that defendant had slandered; that other reports had been circulated accusing him of having slandered other girls in Groshen; and that the community were divided into factions as to the truth of these reports. On cross-examination plaintiffs counsel was allowed to ask him if he had not also been charged with having committed adultery with a girl in Groshen.
    
      Herman Aaron, for app’lt; Philip L. Wilson, of counsel; Nathaniel Niles, for resp’t; W. W. Niles, of counsel.
   Barnard, P. J.

The basis upon which the accounting is. taken is not open to dispute. It was settled by the interlocutory decree, and the decree by stipulation is not appealed from, and no claim is to be made that it should be set aside. The only question, therefore, is as to accuracy of the accounting upon the principles settled by that decree. The first question presented is whether the referee -erred in failing to credit $3,516 65. This question was of serious moment upon the hearing preliminary to the first decree. The decree of necessity falsified the evidence in support of this item. . The title to the property depended upon this finding against the entry, in support of it depends the title of the property as determined by the interlocutory decree. Upon the present hearing there is a violent dispute between the parties.

The plaintiff asserts the falsity of the books made by defendant, and denies the fact as to the indebtedness claimed by defendant. There is no rule which will permit an appellate court to reverse upon this question. As to the Dean street mortgage, the evidence seems to show that the "first mortgages were taken up by the new ones, and these are considered.

The case does not show that any material evidence as to payment by defendant was excluded because there were no vouchers. The payments and to whom made were admitted. The loss of the vouchers was not proven, and no attempt was made to prove their contents The refusal to receive the checks given to Sage was not harmful. It did not show anything beyond the fact of payment, which defendant testified to. The charge for rents is based upon sufficient evidence in favor of it. This subject was the occasion of very conflicting evidence, but the weight- of it is in favor of the finding. The Cincinnati property was ad judged by the first decree to be joint property. The plaintiff testified that there was due him on account thereof $3,516.66. The referee allowed less than that, $3,397.40. The defendant -denied the item wholly, and upon cross-examination an entry was shown him in the books which was supposed to be at variance with this denial. It was proper to admit this single entry, and there was no legal right to compel the plaintiff in such connections to put in the whole body of books of account.

There was given on the trial evidence tending -to impeach the defendant, and he was asked if he was not indicted for perjury; if certain suits had not been decided against him. He admitted the indictment, and denied the result of the action as claimed. The evidence was harmless. The question put to thé defendant about some girl in Goshen was proper on cross-examination. He had excused or mitigated certain facts, which made this inquiry permissible on cross-examination.

The judgment should be affirmed, with costs.

All concur.  