Ennis v. Ennis , 9 N.Y. St. Rep. 54 ( 1887 )

Lawrence, J.

We are of ©pinion that under the second order made by the general term of this court it was the duty of the learned referee to have received any evidence which might be offered by the defendant in regard to the mortgage executed by the plaintiff to Thomas Cummins and the interest thereon, and that the' referee' therefore erred in sustaining the objections to the testimony offered by the defendant at folios 320-323 of the case

We regret that this case is not in such a position as to be disposed of upon its merits, but are compelled to send the case back to the referee for further proofs Ordered accordingly.

Van Brunt, P. J., and Bartlett, J., concur