
    Joseph I. Sayles et al., Resp’ts, v. Nicholas J. De Graff et al., App’lts.
    
      {Supreme Court, General Term, Fourth Department,
    
    
      Filed November, 1894.)
    
    Appeal—Convicting evidence.
    A finding, based on the testimony of a party, will not be disturbed on appeal, though, directly contradicted by several of the adverse parties.
    Appeal from a judgment in favor of plaintiff
    
      Houston & Herrick, for app’lts O’Connor and P.erry; Ed. J. Maxwell for app’lts Clute, Siver and De Graff; Sayles, Searle & Sayles, for resp’ts.
   Martin, J.—

This action was brought to recover for professional services performed by the plaintiffs, and for disbursements made by them in the case of People ex rel. Ballou v. Wendell. The plaintiffs were lawyers doing business under the firm name of Sayles, Searle & Sayles, at the city of Borne, N. Y. The testimony of Joseph I. Sayles, one of the plaintiffs, was to the effect that the defendant Clute came to the plaintiffs’ office to consult with him in regard to that case; that he was then informed by Clute that he came as the representative of the defendants ; that they, the defendants, were prosecuting the case, and would pay him for his services ; that afterwards he saw the other defendants, and communicated to' them what Clute had said; that they practically conceded that his statement was correct, and that they promised to pay for such services and disbursements as should be rendered and made in that case. If the evidence of this witness is to control, and the referee was authorized to give credit to his evidence, notwithstanding the evidence of the defendants, which was in direct conflict with it, then he was justified in making the findings and directing the judgment herein. There was a direct and sharp conflict between the evidence of the witness Sayles and the witnesses called by the defendants. Several of the defendants were sworn as witnesses and positively denied the truth of the testimony given by the witness Sayles as to the essential facts testified to by him as a basis for the recovery herein. If the evidence of the defendants was true, then obviously the judgment in this action is wrong. On the other hand, if the witness Sayles testified correctly as to what occurred, the judgment was authorized, and should be sustained. Upon this conflicting evidence the referee has found in favor of the plaintiffs. His findings should not be disturbed unless it appears that the proof,so clearly preponderates in favor of a contary conclusion that it can be said witli reasonable certaints that the referee erred in his conclusions. Baird v. Mayor, etc., 96 N. Y. 577; Lowery v. Erskine, 133 N. Y. 52, 55; 21 St. Rep. 917; Aldridge v. Aldridge, 120 N. Y. 614; 31 St. Rep. 948; Devlin v. Greenwich Sav. Bank, 125 N. Y. 756; 35 St. Rep. 922; Phoenix Iron Co. v. The Vessels Hopatacong and The Musconetcong, etc., 127 N. Y. 206, 212; 38 St. Rep. 66; Barnard v. Gatz, 140 N. Y. 249, 253; 55 St. Rep. 541. While the evidence in this case would have fully justified the referee in finding in favor of the defendants, still we think he had the right to reply upon the plaintiff’s testimony, and that, under the rule stated, we should not disturb the findings of the referee or the judgment entered thereon.

The appellants’ claim that the defendants were acting for the veterans of Montgomery county, and that the action should have been brought, and could have been maintained, against them asan association, we think cannot be sustained: (1) The proof of the plaintiffs was to the effect that they were not employed by any association, but by the defendants, who agreed to pay them for their services and disbursements; and (2) an action could not have been maintained against the veterans of Montgomery county as an unincorporated association. McCabe v. Goodfellow, 133 N. Y. 89; 44 St. Rep. 253.

Judgment affirmed, with costs.

All concur.  