—The plaintiffs were their own chief witnesses to prove their loss. They swore it up to the sum of $9,989 03 for goods totally destroyed (exclusive of damage to goods partially destroyed, which had been by arbitration fixed before the judgment at $2,60015). The referees *98found the value of the goods totally destroyed at $6,500. The fact that the plaintiffs in their preliminary proofs, and in their testimony on the trial, swore that their loss was about $3,489 03 more than the referees found it to be, is not even presumptive evidence of false swearing or of fraud. If it were, then it would be dangerous for the insured to make in any case a claim of loss, or to attempt to prove it in. court, lest the referees or jury should find for them less than they claimed, and their policies be avoided. They have the right to testify to what they believe to be their loss, and no matter how much that may exceed their recovery, no fraud can be predicated of a result which is due to the judgment of the tribunal alone, unless two points be established against them: i. e., that there were no such goods of such value destroyed ; and that the insured knew, or must have known, the fact when they swore to their preliminary proof of loss; otherwise it is the misfortune and not the crime of the claimants that the court or jury refused to award them the full sum they swore to. The report of referees or verdict of a jury for a lesser sum, when based on evidence sufficient to support it, is deemed conclusive for the purposes of the particular action as to the actual loss, whether the finding be attacked by the insured or the insurer, but it is not conclusive of false swearing or fraud, particularly where it is not based on positive testimony as to that amount, and that only given in contradiction of the insured. The evidence offered by the defendants of the loss was circumstantial, and did not conclusively establish the impossibility of there being goods destroyed as claimed by the plaintiffs. Under such circumstances, there was nothing to sustain a finding of false swearing or fraud, and the referees in these cases might properly find the contrary.
It is no objection to the report and judgment that the referees found for the plaintiffs less than the latter positively swore to. The defendants offered evidence as to the loss being at most not more than $4,600. They did this by a number of witnesses who swore to the extent of the fire, its slight character, the position and condition of the goods found after it, the damage to the bins, shelving, &c., where the goods were alleged to be when the fire took place, the size of the store or room, &c., &e., *99all which tended to show that the loss claimed by plaintiffs was improbable. All these were probably taken into consideration by the referees, and due allowance made for them, resulting in', the finding of a smaller loss, and the award cannot be therefore said to be an arbitrary compromise, or guess-work, or without evidence to support it. The point has been discussed in the courts before, in cases where the jury has found even a smaller sum, proportionately, than in this case against a larger claim by the insured. It has been held to be no objection to the verdict, and to be an error, if an error, of which the insured alone can complain ( Wolf v. Goodhue Ins. Co. 43 Barb. 400).
The referees certainly had evidence before them to sustain their finding, and even to sustain a finding for a larger amount. If they had found for the whole claim of the plaintiffs, the defendants would, according to their own argument, have had less to complain of, since the only two points of law relied on by them, viz.: fraud and false swearing, and a compromise finding, would have been out of the case. It is no objection to the recovery that it was for a lesser sum than claimed, so long as the plaintiffs do not appeal from it.
I cannot see, under the common practice and course of. decisions in the courts, how we can review the finding on the conflicting testimony. The plaintiffs are made competent witnesses by statute, and the referees have the right to credit their evidence. The considerations urged by the defendants on the appeal are more proper to be addressed to the referees than to the appellate court. Whatever suspicion attaches to the statement of the plaintiffs, because it was given after the adjournment, when they might have committed to memory their preliminary proofs of loss, an°d rehearsed them as the result of refreshed recollection or original effort of memory, is disposed of by the fact that the referees chose to believe them, after seeing and hearing the witnesses themselves, and being convinced of their truthfulness, or, at least, of their honest intention to be truthful. I should be the more unwilling .to disturb the finding, because the tribunal before which the issues were tried was constituted so as to afford good guaranties for its impartiality. There were three referees—one named by each of the parties, and one *100by the court. It was as reliable a tribunal as any jury box. If such findings are to be questioned, because there is a conflict of evidence, it would be difficult to say where.and from, what source an impartial judgment could be obtained.
The judgments should be affirmed.
Judgment affirmed.
Present Paly, Ch. J., Labbemobe and J. F, Daly, JJ.