Opinion
June, 1924.
Present — Kelly, P.J., Jaycox, Manning, Young and Kapper, JJ.
Judgment unanimously affirmed, with costs. The only error assigned by the appellants is that the learned referee's opinion is contrary to the evidence. Upon an examination of the record we conclude that the issue presented was one of fact only; hence the referee was called upon to decide whether he would believe the witnesses for plaintiffs or the witnesses for defendants. The appellants claim that the referee erred in accepting one story and rejecting the other. With this contention we cannot agree. There is no competent evidence in this case tending to show that the defendants had any actual knowledge of the fact that the moneys used by the plaintiffs' employee in speculating in defendants' office were stolen moneys; nor is there any evidence that defendants acted in bad faith. We, therefore, concur in the views expressed by the referee, which we think are amply sustained by the evidence.