
    (13 Misc. Rep. 220.)
    MILLER et al. v. ALTIERI et al.p
    (Common Pleas of New York City and County, General Term.
    June 27, 1895.)
    Rejection of Counterclaim—Review—Exceptions.
    A finding by a referee that a counterclaim is not sustained by proof cannot be reviewed on exception to his conclusions of law, or on a general exception to the group of findings embracing it, the other findings being supported by evidence.
    Appeal from judgment on report of referee.’
    Action by Clifford L. Miller and another against Pietro Altieri and others to foreclose a mechanic’s lien. From a judgment for plaintiffs, defendants appeal.
    Affirmed.
    Argued before BOOKSTAVER, BISCHOFF, and PRYOR, JJ.
    Herman Frank, for appellants.
    Miller & Miller, for respondents.
   PER CURIAM.

Upon an appeal from a judgment on the report of a referee, we are solicited to review both the findings of fact and the conclusions of law. Had the referee filed a decision pursuant to chapter 688, Laws 1894, an exception to the decision would have brought before us all questions of fact and of law; but, since he has chosen to state separately the facts found and the conclusions of law, in the revision of the judgment we are controlled by the rules of practice applicable to the actual disposition of the case.

Upon the record no error of law in the conclusions of the referee is presented for review, because those conclusions are justified by the findings of fact (Daniels v. Smith [N. Y. App.] 29 N. E. 1098), and because no finding is utterly without evidence (Halpin v. Insurance Co., 118 N. Y. 165, 23 N. E. 482; Code, § 993, as amended in 1894; opinion in Raabe v. Squier, 5 Misc. Rep. 220, 25 N. Y. Supp. 463). Assuming that the amendment of section 993 of the Code by the act of 1894 opens the facts to review without specific requests (Raabe v. Squier, supra), still we are of opinion, upon the evidence, that the proof amply upholds the findings.

Appellants’ real ground of complaint is the rejection of their counterclaim. But how are we to review the ruling of the referee? The finding is that the counterclaim was not sustained by proof. The exception to the conclusions of law does not touch the counterclaim, because the conclusions have no reference to the counterclaim. Neither does the general exception to the group of findings of fact challenge the rejection of the counterclaim, since others of those findings are sufficiently supported by the evidence. Ward v. Craig, 87 N. Y. 550, 557; Daniels v. Smith (N. Y. App.) 29 N. E. 1098. Supposing, however, the validity of the finding as to the counterclaim be a question for review; we are content with the conclusion of the referee. The counterclaim proceeds on the contention that the contract bound the plaintiffs to supply all the material, but it does not so read. In any event, we see no reason for reversing the finding against the counterclaim. Davis v. Allen, 3 N. Y. 168. Upon a critical examination of the exceptions as to evidence, we do not perceive any error of prejudice to the appellants.

Judgment affirmed, with costs.  