
    Shults v. Shults et al.
    
    
      (Supreme Court, General Term, Fifth Department.
    
    October, 1891.)
    Findings of Referee—Appeal—Evidence.
    The findings of an impartial referee will not be disturbed where they are' sup ported by the evidence.
    Ap) eal from judgment on report of referee.
    Aci on by Josiah Shults against Nellis Shults and others. From a judgment entered on the report of the referee dismissing the complaint on the merits, with costs, plaintiff appeals.
    Argued before Dwight, P. J., and M a comber and Lewis, JJ.
    
      J. F. Parkhurst, for appellant. O. S. Searl, for respondents.
   Dwight, P. J.

The case presents only questions of fact, which have been passed upon by a very competent, careful, and faithful referee. His findings are all of them supported by a clear preponderance of the direct evidence in the case, and in respect to one branch of the case only are opposed by circumstances which might, possibly, have led to a different conclusion, but are not irreconcilable with the conclusion reached. The court is not at liberty to disturb findings based upon such a presentation of the evidence, when made by a referee to whom it is iraposs.ble to attribute either partiality, corruption, or incompetency. Howell v. Biddlecom, 62 Barb. 131. All the rulings on questions of evidence were correct, and the findings of fai t unquestionably support the conclusions of law. There are strong suggestions of hardship in the case, which might possibly, we think, have led to a refusal of costs to the defendant; but in that respect, even, we do not feel at liberty to interfere with the exercise of discretion on the part of the referee. The judgment appealed from must therefore be affirmed, but we think it proper not to award to either party the costs of this appeal. Judgment appealed from affirmed, but without costs of- this appeal to either party. All concur.  