East River National Bank v. . Gove
New York Court of Appeals
Appeal from order of the General Term of the Supreme Court in the first judicial department, reversing a judgment in favor of the defendant entered upon the report of a referee, and granting a new trial. This action was brought to recover $1,100, which plaintiff claimed was credited to the defendant upon its books by mistake and drawn out by him upon his checks.
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Appeal from order of the General Term of the Supreme Court in the first judicial department, reversing a judgment in favor of the defendant entered upon the report of a referee, and granting a new trial. This action was brought to recover $1,100, which plaintiff claimed was credited to the defendant upon its books by mistake and drawn out by him upon his checks. There was no controversy upon the trial about the mistake, but the only question of fact litigated was whether the^defendant had repaid to the bank the eleven hundred dollars. The referee found that he had made the repayment and…
1Opinion of the Court
Earl, C.
The General Term having reversed the judgment entered upon the report of the referee, both upon questions of fact and law, we have the same right to consider questions of fact which the General Term had. (Code, § 272; Westerlo v. De Witt, 36 N. Y., 340.) We cannot sanction the reversal upon questions of fact if the evidence was of such a conflicting character that the referee might have found either way. He had the benefit of seeing and hearing the witnesses, and thus had opportunities of judging of their credibility which we cannot have. His conclusion is entitled to great respect,…
2Cases cited1 opinion
- Westerlo v. . De WittNew York Court of Appeals · 1867
3Cited by7 opinions
- L'Herbette v. Pittsfield National BankMassachusetts Supreme Judicial Court · 1894
- Tulley v. Citizens' State BankIndiana Court of Appeals · 1897
- Bacon v. HeywoodThe Superior Court of New York City · 1895
- Bacon v. HeywoodThe Superior Court of the City of New York and Buffalo · 1895
- Drudge v. Citizens BankIndiana Court of Appeals · 1916
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