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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 562 Although it is not stated in the judgment of reversal by the General Term of the Supreme Court that the judgment entered on the report of the referee was reversed on questions of fact, this court is not precluded from examining the evidence in the case so far as to determine whether the referee properly decided that there was such understanding and agreement between Felix Duffy, the plaintiff's intestate, and Margaret Masterson, the defendant, as is set forth in his report. Whether there was or not, was a question of law, dependent upon the facts and circumstances disclosed by the evidence. His report does not show what those facts or circumstances are, but only states, as the legal conclusion resulting from the evidence, that there was such an understanding and agreement. The existence of the agreement set up by the defendant in her answer, as a defence to the action, was the material matter in issue on the trial, and the plaintiff distinctly raised the question, after the evidence of the defendant had been introduced, that it had not been proved; and the exception to the ruling of the referee thereon, and also to his findings upon the issue in his report, properly present such ruling and finding for our review. They will be briefly considered.
It is not claimed that there was any written agreement between Felix Duffy and the defendant in reference to the matter; and, after a careful examination of the testimony, I do not find that there ever had been any interview between them on the subject, or any admission of Duffy, warranting the conclusion or justifying the inference that there was ever any understanding or agreement, express or implied, that the lease *Page 564 in question, or any lease whatever, should be procured by Duffy for Mrs. Masterson, either in her name or otherwise. The case is entirely barren of proof on that question. There was evidence given by witnesses of declarations or statements of Duffy tending to show that he was erecting the buildings on the lot included in or covered by this lease, and the lot adjoining, held under another lease, for her or her benefit, and that he had received some money from her, and also from their brother, Edward Duffy, for her use, which had been expended in such erection; but they were made a considerable time after such leases had been obtained by him, and are consistent with his holding the title to the property himself, and for his sole use and benefit, at least till the moneys expended by him in the erection of those buildings, greatly exceeding what was so received from her and her brother Edward, had been paid or secured to him. At all events, they do not establish, or tend to establish, the fact, or to raise a presumption that he had taken the leases in trust for her or as her agent, or in fact that there was any agreement or understanding whatever between them in relation thereto.
It follows that the ruling and finding of the referee, to which exceptions were taken, as above stated, were erroneous, and that the judgment rendered on his report was properly reversed. It is therefore unnecessary to consider any other questions.
The order granting a new trial must therefore be affirmed, and judgment absolute, with costs in this court and in the court below, must be rendered against the appellant, establishing the plaintiff's right to a redemption and re-assignment of the lease to her upon payment of the amount for which it is assigned as security.
All for affirmance, except LEONARD, C., not sitting.
Order affirmed and judgment absolute against the defendant, with costs. *Page 565