White v. . Smith , 1871 N.Y. LEXIS 271 ( 1871 )

Peokham, J.

The plaintiffs’ counsel insists, that the referee erred in finding a payment of $366.15 to the' plaintiffs. The Supreme Court so held, and upon that ground set aside the judgment. Ho point of this kind seems to have been presented at the trial, either in the receipt or exclusion of evidence, or by any decision upon any question raised as to the pleadings.

But as there was no proof given of any payment, and payment is found, and perhaps sufficiently excepted to, the pleadings must contain an admission thereof, in substance or the order must be affirmed. I think they do in substance.

The complaint was for work and materials, and sets forth the items specifically, both of labor and materials, amounting to $541.90. It then claims a balance due therefor, “ after deducting all payments made by defendant to plaintiffs thereon of $175.75.”

The answer is a general denial, and sets up a counterclaim, etc.

It cannot be denied, that this complaint admits in ' substance that $366.15 had been paid upon the items in the complaint. It alleged that the items were all just, and that thereafter deducting all payments, there was yet that balance due. It is clear that both parties acted upon the view, that the complaint conceded a payment, and I think with good ground.

The Supreme Court says that the defendant “ should have conceded on the trial that the plaintiffs’ entire claim was $541.90, as stated in the complaint, to enable him to insist that the complaint showed he had paid the plaintiffs $366.75.”

It is clear that the items must all be taken as true to ascertain the amount of the payment, but as a payment, it pannot be claimed to have been any less than that sum, upon those items. Whether the items were all legitimate, were all the subject of recovery, was another question.

The referee, upon the evidence, found the said items that were recoverable, amounted to $501.26, instead of $541.90. Upon the theory of that court, the difference, or $40.64, was the precise error of the referee. I think he committed no error in that.

It is also alleged, that no portion of the complaint was read as evidence before the referee. It was not necessary to read the pleadings. They are presumed to have been before the referee, and that he had knowledge of them contents.

It is insisted, that the referee erred in allowing to defend ant, as counter-claim, the cost of the iron roof, etc., made necessary by plaintiffs’ defective work. There does not seem to be any exception to that allowance, none to that mode or rule of finding the measure of damage in that item. The referee probably found, and intended thereby to find, that that was the cheapest mode of remedying the defect.

The decision of the referee was right in refusing to commence the trial do novo. If the plaintiffs’ have suffered injustice, as they claim by the decision of the referee, upon the facts, this court can afford them no remedy.

Order appealed from reversed, and judgment affirmed upon the report of the referee with costs.

All concur; Oh. J. not voting.

Judgment accordingly.