¶1The Court at General Term (after stating the facts as *548above), said “ For thus splitting the difference between the parties, the referee had no warrant in any testimony hearing directly upon the point, and, if it were necessary to the maintenance of the judgment that the finding should be sustained precisely as made, it perhaps could not be done even upon a balancing of probabilities disclosed by evidence. But no such precision is necessary. Upon the whole case, the evidence clearly preponderated in favor of the plaintiff, and the referee should have sustained their entire claim. If, therefore, he erred, he erred in favor of the defendants, and of this the defendants ought not to be heard to complain.”
¶2Opinion by Freedman, J.; Sedgwick, Oh. J., and Van Vorst, J., concurred.
¶3Judgment affirmed, with costs.