Opinion
June 7, 1907.
Charles W. Dayton, Jr., for the appellant.
Alexander Thain [ Helen Arthur with him on the brief], for the respondent Arthur.
Samuel R. Taylor of counsel [ C.R. G.F. Allison, attorneys], for the respondents Albee.
This case was tried before the same referee and at the same time as that of Preston v. Albee, No. 2 ( 120 App. Div. 89), opinion filed herewith, and presented the same character of case, the mortgage in suit being upon the house adjacent to the premises under foreclosure in action No. 2.
In action No. 2 the referee admitted all the documentary evidence and then dismissed the complaint. In the case under consideration he excluded all of the documentary evidence, including the mortgage sued on, although acknowledged and recorded, and the bond, although executed and acknowledged, the only document which he did receive being a copy of the articles of incorporation of the company. All of this evidence having been excluded, the plaintiff rested, whereupon the referee dismissed the complaint and made findings of fact which were identical with those made by him in action No. 2. He found, however, "that the plaintiff duly established by proof the appointment and qualification of Charles M. Preston as receiver of the New York Building-Loan Banking Company," although he had excluded the certified copy of the judgment against the company appointing Preston receiver, and a certified copy of the bond given by Preston as such receiver.
Such a judgment cannot stand. It is, therefore, reversed and a new trial ordered before another referee, with costs to the appellant to abide the event.
INGRAHAM, LAUGHLIN, SCOTT and LAMBERT, JJ., concurred.
Judgment reversed, new trial ordered before another referee, costs to appellant to abide event. Settle order on notice.