Plaintiff, on the first day’s hearing before the referee, testified that in the year 1873 he let defendant have $150 in money; that defendant borrowed it for three days. He was going to New York, and wanted to-borrow it for three days. He (plaintiff) gave him an order on Mr. Clark, and Mr. Clark let him have it. It was due on plaintiff’s house at that time. Defendant gave him back a check for $60 on account of the loan, a few daysafterwards, and the balance lias not been paid. The defendant denied that he-ever borrowed the money of plaintiff, and, on cross-examination, testified that he did not remember of plaintiff’s giving him an order on Clark. Clark was afterwards sworn, and denied that plaintiff ever gave an order on him to defendant for $150, or that lie ever paid such an order. Defendant after-wards moved to strike out the evidence so given by plaintiff on the first hearing on the ground that it was secondary, and proving the contents of a writing by paroi, which motion was denied by the referee. We are unable to see any error in this ruling of the referee. Conceding that it was improper to prove the contents of the written order by paroi, yet it presumptively appeared on the examination of the plaintiff, on the first day of the trial, that the ordér was in writing; and the defendant, if he wished to object, should have made the objection promptly. Defendant had not only allowed the contents of the order to be proved without objection, but had also, by his witnesses, endeavored to show that no such order was given, and had'made the order the subject of evidence offered by him. But the plaintiff afterwards, by the witness Catherine S. Daniels, proved the contents of the order; to which evidence defendant objected at the time it was received. We think it was no error to receive paroi evidence of the contents of the order. The order was like a check on a bank. The claim of plaintiff was that defendant received $150, and he received it by means of the order on Clark. The action was not on the order, but for the money received. Hence the order was collateral. See Bowen v. Bank, 11 Hun, 226, 228; McFadden v. Kingsbury, 11 Wend. 668, 669. Again, the order had been used 12 years, or over, before the trial. It had answered its purpose; and, in such a case, the presumption of loss from lapse of time arises, and the court could properly receive proof of the contents without proof of the loss. Jackson v. Root, 18 Johns. 60; Chrysler v. Renois, 43 N. Y. 212. See, also, Grover v. Morris, 73 N. Y. 479, 480; Wilkinson v. Gill, 74 N. Y. 68; Roosevelt v. Eckard, 17 Abb. N. C. 60.
The appellant insists that the referee erred in his finding of fact that the plaintiff loaned defendant the sum of $150, inasmuch as, if he did give the
The objections at folios 122 and 123 were properly overruled. The witness was testifying from a memorandum, and was allowed to explain some ambiguous items in it. It was like asking a witness to explain what he meant by an ambiguous expression.
It was not erroneous for the referee to strike out the testimony of Cushot about; the slabs bought of Bose. Such purchase could not affect the case before the referee.
We think the evidence received at folio 523 (of Lilly) was properly admitted, and not important.
The defendant further insists that the referee erred in his third and tenth findings of fact, and that such findings are each unsupported by and contrary to the evidence given in the case. We have examined the evidence with care, as well as the able brief presented by defendant’s counsel. The testimony of the plaintiff in the case, if believed by the referee, would justify these findings. He testified to the contract, the amount of his labor, and materials for repairs, the value thereof, the amount of soft and hard timber sawed, the amount he had received therefor, the amount of repairs afterwards put on the mill, the amount of money and goods he let defendant have; that nothing had been paid to him; that the rest of the sawing bill had been received by defendant; that defendant told him he had received it, and it was satisfactory. The defendant, as a witness, contradicts the plaintiff. It was a question of veracity between the witnesses, and the referee believed the plaintiff. The evidence is not so clearly with either party that we can determine that the referee erred. The doctrine that should govern us in such a case is so well stated in Roosa v. Smith, 17 Hun, 138, followed in Wheeler v. Miller, 24 Hun, 544, that we can do no better, in answer to the position taken by defendant, than to quote a few sentences of the opinion delivered in that case, stating well-settled principles: “ The referee has seen the parties and their witnesses, and heard their testimony, given before him viva voce. He has estimated their frankness, honesty, intelligence, freedom from bias, and given credit or distrust as he thought, in these respects, the witnesses deserved. He has passed judgment upon their personal appearance, temper, and manners while on the stand; and he has looked at all the reasonable probabilities suggested