
    Emily Laraway, Resp’t, v. Frederick Fischer et al., App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July, 1888.)
    
    1. Referee—Findings of fact by—When sustained by evidence will-' • not be disturbed on appeal.
    An appellate court will not disturb the findings and conclusions of a-referee upon questions of fact when fairly sustained by the evidence.
    2. Bill of particulars—Failure to serve proper bill of particulars-—Remedy for how secured.
    Where an improper bill of particulars is served, the party wishing to> preclude Ihe party serving such a bill of partícula)s from giving evidence of matters without the bill should make a motion to that effect before-trial, otherwise the admission of such evidence is not error.
    Appeal from a judgment entered in Lewis county upon, the report of a referee, for $309 damages and costs.
    
      John C. Fullon, for appl’ts; Frank T. Post, for resp’t.
   Martin, J.

In February, ISSo, the plaintiff and the defendants entered into an agreement by which the plaintiff agreed to sell and the defendants to purchase all the cherry lumber that should bo maim fact a red ly the plaintiff during* that season. The defendants were to pay for such lumber seventy-five dollars per thousand for first quality; fifty dollars per thousand for second quality, and twenty dollars per thousand for culls. The lumber was to be sawed as directed, by the defendants and delivered in New York. This agreement was made by the husband of tho plaintiff as her general agent, and for her. All the cherry lumber manufactured by the plaintiff during that season was sawed as directed by tho defendants, and delivered to them under the foregoing contract.

There was no.dispute between the parties as to any of the-lumber delivered, except 4,595 feet of cherry balusters, three by three, and 1,40-1 feet of cherry balusters, two and a. half by two and a half, which the plaintiff delivered, and for which the defendants refused to allow more than forty dollars per thousand, whilo the plaintiff claimed that she. was entitled to seventy-five dollars per thousand for such as was of ilio first quality, and fifty dollars per thousand, for such as was of the second quality. This lumber, like the rest, was sawed as directed by tho defendants.

The referee found that nineteen hundred and ninety-nine feet of those balusters was first quality of cherry lumber, and that the remainder, four thousand feet, was of second quality of cherry lumber; that this lumber was included in the contract between the parties; that the plaintiff was entitled to recover $109.90, the difference between the price agreed upon and the amount allowed and paid by the defendants thereon. The findings and conclusions of' the referee upon this question seem to be fairly sustained by the, evidence, and sb ould, we think, be upheld.

The defendants also charged the plaintiff with $22.80, for discount on money advanced by them to the plaintiff, and deducted that amount frotn the value of the lumber furnished under the contract. This deduction was based on the .ground that there was an agreement that such deduction should.be made, and also that it was the custom of the trade, to charge two per cent where such advances were made. As' to the agreement, and also as to the custom, the evidence was conflicting. Upon such evidence the referee found as follows: “I fail to find that plaintiff ever agreed to pay said discount, or that she had knowledge of, or dealt with reference to such custom. I find that defendants are indebted to plaintiff for such discount so held back in the sum of $22.80.” We think this conclusion was justified by the evidence, and should be sustained.

It was conceded on the trial that fifteen dollars, one-half of the expenses of stacking lumber and loading cars, was due from the defendants to the plaintiff.

The foregoing were the amounts awarded to the plaintiff by the referee. Of those amounts the judgment was made up. We cannot say they were improperly allowed.

The defendants contend that the referee erred in admitting any of the evidence offered by the plaintiff, on the ground that a proper bill of particulars was not served in pursuance of a demand made by them. A bill of particulars of the claims relied upon by the plaintiff was served upon the defendants. What its defects were, if any, aré uot pointed out. When the question arose, the referee held that the evidence was admissible. There was, we think, no error in this ruling of which defendants can complain. Schulhoff v. Co-operative Dress Association, 3 N. Y. Civ. Pro. R., 412; see. also, Langdon v. Brown, 51 Supr. Ct. R., 367, 368; Hoag v. Weslon, 10 N. Y. Civ. Pro. R., 92, 94; Gebhard v. Squier, 10 N. Y. State Rep., 255.

While we have carefully examined the other exceptions in the case, we have found none that require special consideration, or that would justify a reversal of the judgment herein.- It follows, therefore, that the judgment should be -affirmed with costs.

Judgment affirmed with costs.

Hardin, P. J., and Bollett, J., concur.  