(concurring.) No error appears for which we can grant a reversal. There was some evidence to support the referee’s finding reducing plaintiff’s claim; and, on an appeal from the city court,this court has no power to reverse a judgment because we might deem that the weight of evidence was against the referee’s decision. Farley v. Lyddy, 8 Daly, 514. The facts to support defendant’s counter-claim were not controverted, and we think the referee correctly held that they made out a good cause of action. The statute of frauds does not apply. The original credit was given, not to Dugan, but to plaintiff. The notice of plaintiff’s election to end the reference was nugatory, because, although more than 60 days had- expired since the cause was submitted, said notice was not served until after the report had been actually delivered. Code, § 1019; Gregory v. Cryder, 10 Abb. Pr. (N. S.) 289. The judgment appealed from should be affirmed, with costs.