This appeal comes before the court on the record of the judgment, containing the pleadings, the report *Page 606 of the referee, and the exceptions thereto taken by the defendants. No part of the evidence has been returned. The action was tried by referees agreed on by the parties, as it appears from the order of reference. The facts found are exceedingly meagre, and, as the General Term of the New York Common Pleas have said, the legal conclusion of the referees is not sustained by the facts embodied and set forth in their report.
The question here is reduced to an inquiry what, if anything, this court must legally presume or infer has been proven, beyond the facts found, in order to uphold the judgment or legal conclusions of the referees. There is no statement contained in the judgment of the General Term that it was reversed on questions of fact; hence it must be assumed to have been on questions of law. (Code, § 268.) All facts which the evidence tended to prove, and the referees might have found, must be assumed, in addition to those actually found. (Chubbuck v.Vernam, 42 N.Y., 432.) We know not whether any such evidence was given. It may have been given, and the omission to procure its return to this court must rest with the party complaining of the report.
It is said in the head-note to that case, that "when the case contains none of the evidence, and only the findings of fact and conclusions of law of the referee, an exception that the conclusion of law is not authorized by the facts found is not good." The case, however, on examination, shows that the statement, in its full breadth, requires some explanation.
The action in that case was brought to set aside a settlement of accounts between partners. The plaintiff alleged fraud and mistake as the ground of his complaint, which the defendant denied. The case states that the referee found certain facts, and then found as his conclusion of law, that the evidence of fraud or mistake was insufficient to open the accounts, to which decision there was an exception. The evidence not being returned with the record, and the facts as found not being sufficient to prove fraud or mistake, the court said, in substance, that they could not hold that the conclusion *Page 607 of law found by the referee was based alone upon the facts inserted in the case, it not being stated that the conclusion of law was based upon the facts so found, nor that such facts were all the facts proven. The court could not infer fraud or mistake, as it appears they were asked to do. The plaintiff was bound to prove his case, or fail in obtaining relief. It does not appear that the conclusions of law in that case were not authorized by the facts found, as might be inferred from the head-note. On the contrary, the court were of the opinion that the conclusion was correct.
Had the note stated that the court would not infer or assume facts not found, in order to overthrow a report or reverse a judgment, it would not have been liable to misconstruction.
An exception on the ground that the referee has not found facts which were within the issue, where he has not been requested to find as to such facts, and has not refused, is not good. (Ashley v. Marshall, 29 N.Y., 494, 501.)
The general conclusion of the referee is to be construed as involving a finding upon all the material questions, though not expressed in terms. (Grant v. Morse, 22 N.Y., 323.)
In the case last cited, Judge COMSTOCK, in delivering the opinion of the court, says: "Judgments are not reversed in this court because the facts found by a referee or a judge do not affirmatively sustain them. On the contrary, the judgments of subordinate courts are presumed to be right, unless it appear that a rule of law has been violated after assuming that the facts have been viewed in the most favorable light which the case will admit."
I am of the opinion, from these authorities, that the judgment on the report ought not to have been reversed on account of the omission to state the necessary facts to create a logical and legal sequence for the conclusions of law found by the referee.
The counsel charged with the duty of defending the city, ought to have presented the appeal by making up and settling a case, so as to have raised the questions discussed, or by *Page 608 requesting the referees to find specifically upon the facts which they have omitted to consider, and which were deemed material to the issue or defence.
The inference from the omission so to do, is that an observance of the usual practice, as suggested above, would have been of no advantage to the defence, and might have enabled the court to discover the omitted facts, which would have rendered the conclusions of law found by the referees complete as logical and legal sequences.
The court cannot perceive, with certainty, that the facts do not exist, or were not proven, which the learned counsel for the defendants complain have not been found. If other facts were material to the defence, and were proven, counsel for the defence ought to have procured the referee to have found in respect to them, or to have made a case. The question as to the sufficiency of the evidence, must then have been considered by the General Term. The court below would have compelled the referees to have found as to material facts, if on request, they had refused so to do. The report of the court, or referees, before whom an action has been tried, is not the subject of a demurrer by the defeated party, like a pleading, when the action comes before an Appellate Court.
I am not without a doubt as to the justice of the report but I am unable to perceive, how, consistently with the settled practice of the Court of Appeals, the question can be reached on an appeal. At least not in the manner the case is here presented.
In my opinion, the General Term of the Common Pleas disregarded the settled rules and practice of the law by reversing the judgment upon the case as now presented.
The judgment of the General Term should be reversed with costs.
All for reversal.
Order of the General Term reversed, and judgment entered upon the report of the referees affirmed, with costs. *Page 609