Quincey v. Young , 5 Daly 44 ( 1873 )

Larremore, J.

The main issue raised by the pleadings was whether there was a joint liability on the part of the defendants. The referee has decided against them on this point, and the facts upon which such liability is founded, are separately stated in his report. The defendants claim that there should have been a further finding of facts upon the requests made, viz.: the several acts of Heath & Co. in dividing the stock and settling with Woodward & White, and other acts on their part tending to establish a severance of the account—the settlement with Woodward & White, and the individual liability of Young.

Bule 41 of the Supreme Court requires that upon the settlement of the case, the justice or referee shall “ find on such other questions of facts as may be required by either party and be material to the issue.” To his refusal or neglect to do this, an exception lies which is analogous to that made under the former practice to the rulings of the court after the evidence was closed and before the jury retired. It is a separate and independent privilege, and should be limited, as the rule provides, to such facts as appear to be material to the issues involved and the decision thereon (Casler v. Shipman, 35 N. Y. 542; The People v. Albany & Susq. R. R. 57 Barb. 211; Van Slyke v. Hyatt, 46 N. Y. 265). 1 do not understand the case of Casler v. Shipman (35 N. Y. 541), as establishing the theory that an appellant is entitled to have all the facts found, those which are in opposition to, as well as those which support the judgment. It is every material fact necessary to the determination of the issues that is required to be found. In Priest v. Price (3 Keyes, 222), it does not appear that there were any requests to find.

The facts not found are impliedly negatived, and the referee should not be required to find them in that form (Sermont v. Baetjer, 49 Barb. 364; Nelson v. Ingersoll, 27 How. Pr. 1; Manley v. Ins. Co. North America, 1 Lans. 20). I do not think the referee should he called upon to make further findings in this case. Having reached the conclusion that the defendants were jointly liable, all the testimony relating to the individual acts of the parties, so far as it sought to establish individual liability on their part, was at variance with and properly excluded from the report. The defendants seek to have almost every fact of which evidence was offered by them, incorporated in the report. Such a course is not in conformity with the practice, and should not be encouraged. I think the order appealed from should be affirmed.

Daly, Ch. J., and J. F. Daly, J., concurred.

Order affirmed.