Fitch against The New York and Erie Railroad Company, 1 Seld. Notes 120

This cause was tried before a referee, who made a report in favor of the plaintiff, on which judgment was rendered in the Supreme Court. But one exception was taken before the referee, which was to the admission of a witness for the plaintiff on the ground of his interest. The only fact testified to by the witness in favor of the plaintiff, related to a notice given to the resident engineer of the defendants. It was subsequently admitted by the plaintiff’s counsel, that this was not a notice which bound the defendants.

The Supreme Court, in passing upon the case, rejected the evidence; and this court presumed that the referee must have done the same. Other testimony objected to by the defendants was received by consent, subject to objection, to be subsequently passed upon by the referee. It did not appear by the referee’s report how he disposed of the questions so reserved; but it did appear by the bill of exceptions, signed by a justice of the Supreme Court, after the decision at the general term, that they were all decided in favor of the defendants.

Held, that there was no error appearing on the record of which the defendants could complain.