
    Joseph E. Fell, Resp’t, v. The New York Locomotive Works, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed November 16, 1888.)
    
    1. Referee—When findings will not be reviewed.
    Where there is no certificate in the appeal book that the case contains all the evidence given upon the trial, the court will not review the findings of fact made by the referee.
    2. Same—Evidence—Discretionary power.
    In a case tried before a referee the defendant rested and the plaintiff then offered testimony tending to rebut or contradict that given by the defendant. Held, that inasmuch as such testimony was competent” material and relevant, it was within the discretion of tile referee to admit it.
    3. Same—Discretion—Controlling.
    Such discretion when exercised is controlling, and will not he disturbed unless it is clear that there has been an abuse of the discretion.
    Appeal from a judgment entered upon the report of a referee in Oneida county in favor of the plaintiff for 8813.53, and interest from November 5, 1887, damages and for costs.
    Plaintiff’s complaint avers that from about January 1, 1884, he was in the employ of the defendant “as a jobber or contractor manufacturing and superintending the manufacture of certain parts of locomotive engines, his particular employment being known as the 6 rocker or piston job,’ ” at a certain agreed schedule of rates or prices for eacli piece manufactured; and that the agreement was terminated by and at the instance of this defendant, on or about October 15, 1887; and that the defendant was indebted to plaintiff, “under and pursuant to the contract above described, for work, labor and services in the manufacture and superintendence of the manufacture of certain parrs of locomotive engines, in the sum of 8837.66.” Defendant, in its answer, admlis “ that it Is indebted to this plaintiff for work, labor and services by him, said plain tiff, performed according to a certain agreed schedule of rates in the sum and amount of $062.91, part of the sum of $837.60 demanded in the complaint herein.” And it also contains a denial of any further or other indebtedness.
    The referee, upon the evidence before him, found “that-on or about February 25, 1887, plaintiff entered info a new agreement with defendant, by which lie agreed to continue in the employ of defendant, at the same class of work and at the same schedule of rates or prices as before, subject, however, to a discount upon the amount or value of such work monthly, of three per centum for each and every engine over five and not exceeding twelve, which should be completed and leave defendant’s said works during the month, or between pay days.” And the referee also found that October 15, 1887, the value of the work done by plaintiff for defendant, at the schedule of prices aforesaid, and_ remaining unsettled and unpaid for, was $837.66 as appraised and agreed upon between the parties, on or about October 17, 1887, and the referee allowed a discount on six engines amounting to $25.13, leaving a net balance of $812.53, for which sum he ordered judgment. . .
    
      George P. Nock, for app’lt; Eugene A. Rowland, for xesp’t.
   Hardin, P. J.

Inasmuch as there is no certificate in the appeal book that the case contains all the evidence given upon the trial before the referee this court will not review the findings of fact made by the referee. Griffiths et al v. Phelps, 21 Wkly. Dig., 390; Spence v. Chambers, 39 Hun, 195; Porter v. Smith, 35 id., 118; Graff et al v. Ross, 47 id., 152; 14 N. Y. State Rep., 636.

We must therefore assume that the facts were sufficient to uphold the findings of fact made by the referee. There is no exception to his conclusion of law stated in his report. There is therefore nothing for us to review except the rulings of the referee made upon the trial.

Plaintiff to maintain his action was sworn as a witness and testified in substance to the arrangement that was entered into between him and defendant in respect to his services and after referring to. bill of particulars which he said represents the work that defendant was and is indebted to me for, he added “my contract with defendant was simply this: The work was to be performed and labor to be paid for through the office; the contract was made with White, and afterwards, in 1887, with Mr. Hardie, in which whole contract was modified, but price per piece remained the same.” He also said, “The discounts were to be: On •each engine, up to five, which should leave the works, between pay days, there was to be no discount; on each additional engine, over five and up to twelve which should leave the works between pay days, there should be three per cent per engine discount.”

After plaintiff had given his version of the arrangement existing between him and the defendant, the defendant took the case and Mr Stryker, was sworn in its behalf and gave testimony somewhat in conflict with that of the plaintiff in respect to the understanding as to the discounts, and he added that Mr. Hardie, who was superintendent of the defendant “was authorized to make the contract.” He .also testified that plaintiff and he had held a conversation and that the plaintiff in that conversation claimed “ there should be no discount; 1 claimed that the discounts should be taken out * * * I said it was not a question of how many engines sent out, but how much work he had done, Mr. Fell had, so far as his work was concerned, finished five engines dnring the three weeks preceding time he left defendant’s employ.” He also testified: “Defendant ratified the scale of discounts etc., named in Exhibit No. 2, and authorized Hardie to make a contract with Fell, in accordance with them; that is all I recollect. The talk with Hardie,, about allowing discounts, for calendar months, was a little later, and was no part of the original contract; the agreement has been treated by both parties, that the settlement should be made every pay month, instead of calendar month.”

After the defendant had given some further testimony tending to support its theory of the contract, it rested and plaintiff took the case and called to the stand as a witness' Robert Hardie who was superintendant of defendant’s works from April 1886, to June 1887, and by him plaintiff proposed to pro-ye the conversation»held between him'and plaintiff which formed the contract between defendant and plaintiff. To that conversation defendant objected as incompetent, irrelevant, immaterial and (2) as reopening the plaintiff’® case and not rebutting testimony.

The court overruled the objections. The defendant took an exception.

It is now urged in behalf of defendant that exception presents a fatal error. We do not think so. We think that testimony given by Hardie tended to rebut or contradict some of the testimony given by defendant upon the issues involved between the parties. The testimony was, therefore, competent and material and relevant. Doubtless the- testimony of Hardie might have been received while plaintiff was giving his affirmative testimony to make-out his claim or cause of action.

Our attention is called to the rule which requires all the testimony in support of the issue on plaintiff’s side to be given before he has rested, and Marshall et al. v. Davies (78 N. Y., 420), is cited for the rule. That case, as well a numerous others, holds that the rule has exceptions to it. In the case just cited Rapallo, J., says: “These rules may, in special cases, be departed from in the discretion of the trial judge, but a refusal to depart from them is no ground, for exception.”

Our attention is called to Knallakan v. Beck (47 Hun, 118; 13 N. Y. State Rep., 235). There defendant took no objection that the evidence had been closed, and that plaintiff was re-opening the case. “We there held that defendant could not be heard to say that the court abused its discretion in that regard; he must be confined to the objections stated and taken when the rulings complained of were made.” Nothing in that case is said or intimated to effect that the question whether case should be re-opened or not was not one for the discretion of the trial judge or referee.

That discretion, when exercised, is controlling, and will not be disturbed unless the appellate court is clearly of the opinion that there has been ah abuse of the discretion.

We are not able to say that the. referee abused his discretion in receiving the testimony of Hardie; on the contrary, we think a portion of Hardie’s testimony was entirely competent by way of rebuttal of the facts, which the defendant had produced upon the issue, and so far as it was not a rebuttal it was affirmative testimony. There was no error or abuse of discretion committed by the referee in receiving it at that stage of the case when it was offered. Agate v. Morrison, 84 N. Y., 672.

In Delafield v. DeGrauw (9 Bosw., 1), it was held, viz: “At the close of the trial it is in referee’s discretion whether he will allow depositions to be read as to matters which should be proved by a plaintiff or defendant before he rests, and his refusal to allow it is not matter of exception.”

If defendant was taken by surprise by the permission given to call Hardie as a witness, and needed further testimony, an application for an adjournment might have been made to the referee, and it must be assumed that he would have allowed proper latitude to defendant in order to meet the testimony of witness Hardie.

Second. Nor do we think it was error- to permit witness Hardie to state he had reported the terms of the contract made with plaintiff to Stryker. The witness had just stated the terms of the contract, and the important inquiry was whether information thereof was communicated to Mr. Stryker, an officer of defendant.

Third. Nor do we think it was error to allow witness to state that “Mr. Stryker asked me if the word month was to mean calendar month; I said no; it was to be four weeks or a pay month;' I told him that was the understanding between Fell and I, and I refused to reopen negotiations with Fell.”

We think the exceptions taken during the progress of the trial present no error calling for an interference with the conclusions reached by the referee.

Judgment affirmed, with costs.

Follett and Martin, JJ., concur.  