Lugar v. Byrnes
New York Supreme Court
Motion by plaintiff to vacate a judgment entered upon a referee’s report in favor of defendant, and for an order that the referee’s report be referred back to him for the purpose of requiring the referee to make and file findings of fact in addition to his conclusions of law. The action was brought by Maria H. Lugar and others against Fannie J. Byrnes and others to set aside a convey•ance alleged to have been procured by undue influence.
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Motion by plaintiff to vacate a judgment entered upon a referee’s report in favor of defendant, and for an order that the referee’s report be referred back to him for the purpose of requiring the referee to make and file findings of fact in addition to his conclusions of law. The action was brought by Maria H. Lugar and others against Fannie J. Byrnes and others to set aside a convey•ance alleged to have been procured by undue influence. The action was referred to a referee to hear and determine the issues.
1Opinion of the CourtPatterson, J.
The referee dismissed the complaint for failure of proof. He expressly states it was “ not on the merits.” He passed upon the requests of both parties to find and refused to make the findings proposed by either side. Where there is an entire failure to prove the allegations of the complaint, and, as in this case, no evidence is offered by the defendant and the motion to dismiss is made and granted on the ground that the allegations of the complaint have not been proven. It is difficult to see what findings of fact could have been made unless the failure to prove the plaintiff’s case entitled…
2Cases cited11 opinions
- Place v. . HaywardNew York Court of Appeals · 1889
- Wood v. . LaryNew York Court of Appeals · 1891
- Scofield v. . HernandezNew York Court of Appeals · 1872
- Martin v. CookNew York Supreme Court · 1891
- Columbia Bank v. Gospel Tabernacle ChurchNew York Court of Appeals · 1891
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3Cited by1 opinion
- Steubing v. N. Y. Elevated RailroadNew York Court of Appeals · 1893