I concur, and also concur with the suggestion of Judge Van Hoesen as to a trial of certain issues by a jury.
Van Hoesen, J. —It is well settled that the findings of a referee or a single judge upon disputed questions of fact ought not to be set aside by the General Term merely because the judges would not have found the facts in the same manner. If the case be a doubtful one, if the conclusion might well be either way, the General Term must not disturb the judgment, even though the judges are of opinion that a different decision would have been more in the interests of justice. The reason of this is that .those who simply read the testimony cannot possibly measure the intelligence, the candor, and the character of a witness as well as those who hear and see him as he is under examination. It is only where the error of the referee in deciding the facts is manifest, that the General Term should reverse his decision (Green v. Roworth, 3 N. Y. St. Rep. 568, and cases there cited).
Is the error of the referee in this case manifest ? Must *444we say, after allowing for the opportunities that he had of seeing the witnesses, after allowing that it is his province to determine the credibility of the witnesses, to weigh the evidence, and draw inferences and conclusions from it, that it is evident that his decision cannot be right? I think we must so hold, though I believe that the referee made an honest, faithful effort to reach the true conclusion. His error arose, in my opinion, from giving too great weight to the charge that the signature of the plaintiff to the agreement of dissolution, dated September 29th, 1877, is a forgery. That signature looks to me very suspicious. It is unlike the other signatures of the plaintiff; it appears to have been built up by the process sometimes called painting, and it is blotted, as if the writer, conscious of the imperfections of his imitation, had sought to conceal, by blurring, the defects of his handiwork.
Of course, if the crime of forgery were fastened upon the defendant, it was easy thereafter to believe him guilty of the many rascalities that the plaintiff charged upon him. But though the signature to the agreement of dissolution was so badly done as to excite suspicion, the only evidence that it was a forgery was given by the plaintiff himself; and to his testimony not much weight can be allowed. There are many strong circumstances in the case that tend to prove very satisfactorily that the signature is not after all a forgery. I have said that not much weight is to be given to the plaintiff as a witness, and I will now give my reason for making that observation. The plaintiff, when first cross-examined, testified as follows: “ I know H. O. Jolms; the partnership did not have a note of his; the defendant did not give a note of his to me to collect; I did not know a man named Heller or Hellen or any similar name; the defendant did not give me a note of 1779 to collect made by Heller or a person of any such name; he gave me no note to collect except the Harris note.”
A paper was afterwards introduced in evidence, signed by the plaintiff. It was dated June 26th, 1878, and acknowledged the receipt “for collection” of the Harris *445note, of a note for $314.50, dated September 19th, 1877, signed by H. C. Johns, and of a note dated December 1st, 1877, for $779, signed by A. Heller. These notes were all received from the defendant “for collection” by the plaintiff. When confronted with that receipt, the plaintiff said, “The Johns note I have, and I produce it; it is the Johns note referred to in the receipt. The Heller note was destroyed in the hotel fire when I lost my papers. Nothing was ever received on those notes as far as I know.” Those notes the plaintiff had denied all knowledge of, and yet he confesses that one of them was in his possession, and he knew just when and where the other had been destroyed. There was a reason for his denying all knowledge of those notes: they were partnership property (the Harris notes certainly were), and yet the plaintiff took them from the defendant “ for collection,” in June, 1878. If the dissolution occurred in September, 1877, this transaction would have been perfectly natural, but if the partnership was still in existence why should the plaintiff give to the defendant a receipt that acknowledged the defendant’s sole ownership of the notes, and his own undertaking to “ collect ” them — an undertaking that implied the obligation to account to the defendant for their proceeds ?
Now, whether the plaintiff was untruthful, or whether he was merely forgetful, his testimony, if not impeached, is so untrustworthy that it must be closely scrutinized when it relates to a fact that is prejudicial to his interests in this action. If he can forget notes "that he has in his possession when his attention is pointedly called to their existence, it is not at all unlikely that he should forget having signed a paper which he never had in his possession.
Again, he swore positively that there never was a settlement of the partnership accounts after the year 1869. A written settlement dated October 16th, 1874, signed by both parties, the plaintiff and the defendant, was then shown to Mm. The signature is undoubtedly his; he admits it; but he says that no such settlement ever occurred, and that his signature was procured by a representation that the *446paper was of an entirely different, and of a comparatively unimportant, nature. The paper acknowledges an indebtedness to the defendant. Why he did not read the paper when his signature was requested he does not explain except by saying that he had great confidence in the defendant, and therefore signed anything he presented without taking the trouble to examine it. Explanations of that character are never very satisfactory. They are not so in this case, for the conveyances of which I am to speak hereafter would not, in all probability, have been executed if the affairs of the partnership had remained open, and if the plaintiff had believed that the defendant was largely in his debt.
The agreement of dissolution, dated September 29th, 1877, is denounced by the plaintiff as a forgery. It provides, first, for a dissolution of the partnership, and afterwards for a transfer to the defendant of the proceeds of the Salisbury property, of the Carson property, of the Tallman property, and of certain oil leases in Warren County. It acknowledges an indebtedness to the defendant for monejrs advanced in the business of the partnership, it provides for the repayment of the defendant, and then provides for the speedy winding up of the business, “and a final settlement as soon as possible of all accounts.” Now, that it is a forgery, there is nothing to show, except the suspiciously bad signature — as to which there is room for a difference of opinion — and the testimony of the plaintiff himself.
If it should appear that the transfers that the agreement provided for were afterwards executed, there would be the strongest evidence that it was not a forgery, but that it was a contract deliberately made, and with a full understanding of its contents. The imperfections of the signature would then be ascribed to nervousness, or to some other cause that temporarily affected the nervous system, and the testimony of the plaintiff that it is a forgery would be rejected. It is proved that three conveyances were executed by the plain- ■ tiff, on February 14th, 1878: one conveys the plaintiff’s interest in the Tallman farm, another conveys the plaintiff’s *447interest in the oil leases in Warren and McKean counties, and the third conveys the interest of the plaintiff in the Briggs farm.
The Salisbury farm had been conveyed by both parties to a Mrs. Gray on September 5th, 1877, and it was to the plaintiff’s share of the moneys that Mrs. Gray was to pay that the defendant acquired title by the agreement of dissolution. The Carson property had been sold to a Mr. Ackerley, and the other properties referred to in the agreement were, after September 29th, 1877, controlled by the defendant, with the full concurrence of the plaintiff. Though the parties subsequently had business together they were not partners. The dissolution unquestionably took effect at the date of the paper that is called a forgery.
It has already been seen that in June, 1878, the plaintiff, when intrusted by the defendant with the possession of certain notes, receipted for them as given to him for the purpose of collection.
Surely, there is strong evidence of a dissolution, irrespective of the disputed agreement. The conveyances, the action of both parties, their dealings with each other, not as partners, but as capitalist and “ prospector ” (to use a word borrowed from the mining camps), show that there was in fact a termination of their partnership relations; and no reason can be given why, if they had ceased to be partners, there should have been any hesitation in stating that fact in writing.
The duty of accounting remained, and the collection of the outstanding assets of the partnership was assumed as a duty by the defendant. It is said by the defendant that there was nothing coming to the plaintiff out of the assets of the firm; but nevertheless the defendant, in June, 1882, paid to him, or, as he prefers to say, donated to him, the sum of $600.
At the time of the handing of the money to the plaintiff, the defendant wrote a receipt, which the plaintiff signed, and which declared the $600 to be in full of all accounts and in settlement. The words “in full of all accounts *448and in settlement,” the plaintiff swears were not in the receipt at the time that he signed it. If this be true, the defendant committed the crime of forgery, for he must have interpolated the words over the plaintiff’s signature. But is it true ? Does not the' evidence, taken as a whole, show that it is the habit of the plaintiff to charge forgery or fraud whenever he is confronted with a document that presents a barrier to his claims ?
I think that in view of the other charges that the plaintiff has made, and which, as I believe, he has utterly failed to sustain, it would be unreasonable to hold that the defendant had committed the high crime of forgery, when the only evidence of his guilt is the accusation of the plaintiff, a party in interest, whose testimony on other points we have felt that we could not rely on. The judgment should, in my opinion, be set aside, and the questions of forgery and fraud should be tried by a jury. The accounting should be deferred until a jury has passed upon the validity of the papers that either bar the.plaintiff, or else show the defendant to be under obligations to account to him.
Judgment reversed and new trial ordered, with costs to abide event.