
    Reed v. Zimmerman.
    (New York Common Pleas
    General Term,
    June, 1893.)
    In an action to recover a balance due upon an account for money lent, payment was set up as a defense; there was no evidence bearing upon the disputed question other than the conflicting testimony of the parties to the action. Held, that in such a case there is nothing which this court may review, as it is precluded from consideration of the weight of evidence by the judgment of the General Term of the court below.
    Plaintiff read from memoranda while testifying, under objection .and exception to the referee’s refusal to direct a production thereof for inspection by defendant’s counsel. It appeared, however, that the memoranda were produced and inspected by defendant’s counsel after the referee’s ruling was had, and that plaintiff was cross-examined respect- • ing their contents. Reid, that the error of the referee’s refusal, assuming it to have been such, was harmless, and the exceptions, therefore, afforded no ground for reversal.
    
      Appeal from a judgment of the General Term of the City Court of New York, which affirmed a judgment entered upon a referee’s report.
    Action to recover a balance due upon an account for money lent.
    
      Millard G. Ernsberger, for plaintiff (respondent).
    
      Dennis McMahon, for defendant (appellant).
   Bischofe, J.

On the trial the controversy between the parties to this action was reduced substantially to the question whether or not defendant was entitled to be credited with the amounts of three several checks, $135, $140, and $159.75, and cash, $100.05, aggregating $534.80, in payment on account of his indebtedness to plaintiff. Defendant maintained that these several items were by him applied in payment of the indebtedness, while plaintiff contended that they had reference to matters not connected with the subject-matter of the action. On defendant rested the burden of proving his defense of payment, and no evidence appears in the record bearing upon the dispute, other than the conflicting testimony of the parties, respectively. In such a case there is nothing winch we may review, as we are precluded from consideration of the weight of the evidence by the judgment of the General Term of the court below. Arnstein v. Haulenbeek, 16 Daly, 382; Third Wat. Bank v. Cornes, 1 Silvernail Ct. App. 167.

Defendant’s exceptions concerning the memoranda from which plaintiff read while testifying, were confined to the referee’s refusal to direct the production of the memoranda for inspection by defendant’s counsel. The record, however, shows that the memoranda were produced and inspected by defendant’s counsel after the referee’s ruling was had, and that plaintiff was cross-examined respecting their contents. Under the circumstances, the error of the referee’s refusal, assuming it to have been such, was harmless, and the exceptions, therefore, afford no ground for reversal. City Bank of Brooklyn v. Dearborn, 20 N. Y. 244; Phillips v. Richardson, 35 N. Y. St. Repr. 377. Furthermore, the error was waived. Crosby v. Day, 81 N. Y. 242; Neil v. Thorn, 88 id. 270, 277.

The judgment should be affirmed, with costs.

Bookstaveb and Peyob, JJ., concur.

Judgment affirmed.  