
    ALVIN F. HILL, Resp’t, v. PHILIP SPENCER et al. and THE AMERICAN NATIONAL BANK, App’lts.
    Foreclosure op mortgage.
    Appeal from an order confirming the report of a referee in foreclosure proceedings entered in Kings county.
    
      Thornton, Earle & Kiendal, for resp’t; A.U.Ammidown, for app’lt, the bank.
   Pratt, J.

—The decision herein depends upon the question whether the bond and mortgage were in fact assigned to Mann & Co. in 1868.

The referee has found in favor of such transfer, and, although ¡the question is not free from doubt, we do not feel at liberty to reverse his finding upon that point. He has had the advantage of seeing the witnesses and can judge better than can the appellate court whether the contradictions in the testimony of plaintiff’s witnesses should affect their credibility;

We do not find any evidence that the title of Mann & Co. has been defeated or cut off, or that any re-transfer has been made to Brown or to any one in his behalf. The intimate relation between Brown and the plaintiff, and also between Brown & Gilbert, loads the case with suspicion.

But if the fact be that a bona fide transfer was made in 1868 to Mann & Co. it will not be defeated because the enforcement of the bond and mortgage has been confided to the intimates of Brown.

We do not disguise that a different ruling by the referee upon the principal point, viz.: the transfer to Mann & Co. would have been sustained by the appellate court. Yet, as he has seen the witnesses, we yield with some reluctance to the rule that in case of doubt the finding of the tribunal of first instance should not be interfered with.

The appeal was a proper one to bring, and the affirmance must be without costs.

Barnard, P. J., and Dykman, J., concur.  