Preston v. Arthur

Appellate Division of the Supreme Court of the State of New York

Decided June 7, 1907

Appellate Division of the Supreme Court of the State of New York · decided 1907-06-07

Appeal by the plaintiff, Charles ¡M¡. Preston, as receiver,. etc., from a judgment of the Supreme Court in favor of the defendants Albee, entered in the office of the clerk of the county of New York ón the 18th day.óf December, 1906, upon the report- of a referee.

Decided 1907-06-07

Clarke, J.;

¶1This action was tried before the same refere'e and at the same time as actions Nos. 2 and 3*, opinions wherein are herewith handed ¡down, and presented' the same general features, the mortgage foreclosed being upon a house, adjacent to the two covered by the former actions. -

¶2In this case the referee excluded all the documentary evidence and made similar findings to those considered in the two prior cases, including the finding as to the appointment and qualification of ■ Preston as receiver, the evidence to establish which he had excluded.

¶3This judgment must also be reversed and a new trial ordered before another referee, with costs to the appellant to abide the event.

¶4Ingba-ham, Lahghlin, Scott and Lambert, JJ., concurred.

¶5Judgment reversed, new trial ordered before another referee, costs to appellant to abide event. Settle order on notice.

¶6Preston v. Albee, No. 2 (120 App. Div. 89); Preston v. Arthur, No. 3 (Id. 93)—[Rep.