Tomlinson v. . the Mayor, Etc.

If the services for which the plaintiff sues are a part of his official duties as corporation attorney, for which he received a salary, he ought not to recover. If they were not a part of the duties imposed upon him by that office, and were performed by him for the defendants and at their request, he is entitled to recover. The referees so state the proposition, *Page 603 and correctly. Acting under it, they find and report that the services were not in part performance of the duties imposed upon him as such officer, and have directed a judgment in his favor for the amount of his claim. This judgment the General Term has reversed. A judgment of a referee may be reversed for error in fact, or error in law. If upon a review of all the evidence, the General Term shall be of the opinion that the referee has drawn erroneous conclusions from the evidence, it may for that reason reverse his judgment. That is not the present case. Here, the evidence was not presented to the General Term. They were not asked to say that the referee had made erroneous conclusions of fact, as they had no means of judging on that point. (Smith v.Coe, 29 N.Y., 666.) What was the error in law for which the judgment was reversed? I do not understand the General Term to dispute the proposition, that if the plaintiff performed the services in question at the request of the defendants, and they were services not included within his duties as corporation attorney, he may recover for such services. Nor do I understand the respondents' counsel on the argument, to dispute that proposition. The argument both of the respondents' counsel and of the court below amounts to this, that the facts stated in the report do not justify the conclusion of the referees. Thus in his first point, the counsel for the respondents says "The conclusion from the facts found by the referees, that the plaintiff was entitled to recover damages, was not a logical sequence from the premises." In his second point he says, "If the services in question were not rendered in performance of duties imposed by the ordinance of May 8, yet the presumption, in view of the relation of the parties to this suit to each other, intermediate May, 1847, and May, 1848, is that they were such as plaintiff was bound to perform under ordinances prescribing his duties at the time of his original appointment. 1. It nowhere appears that they were not such suits. The referees did not find as a conclusion of fact, that the services in question were not a part of such duties. They state this *Page 604 merely as a conclusion of law. 2. The ordinances are broad enough to cover these cases. 3. Proof of the precise character of these suits was within the plaintiff's power, and his failure to produce it turns every doubt against him." So, in delivering the opinion of the General Term, Judge DALY says: "The only question is, whether the statement of facts set forth in the referees' report, and which forms part of the record, is sufficient to warrant the judgment." Again he says, "All that is found as a matter of fact respecting them is what has been stated, and for all that appears in that statement they may have been actions which the plaintiff was bound as corporation attorney to prosecute under the ordinance existing at the time of his appointment." Again: "They may have been (connected with the alms-house department), but there is nothing upon the statement of facts recorded, to show it." * * * "And as we have nothing of what took place before the referees, as the testimony presented to them is not before us, it is our duty to see that the facts found by them fully sustain the judgment entered upon their finding." * * "It must be distinctly found as a fact that they were suits growing out of the business of that department, if that fact is necessary to sustain the legal conclusion arrived at by the referees and the judgment predicated upon it. Every thing asserted to support the judgment must appear in the statement of facts." These arguments are based upon an erroneous understanding of the effect of the referees' report. They confound a reversal upon questions of fact, with a reversal on points of law, whereas the Code carefully preserves that distinction. It is quite manifest from the citations I have made from the opinion below, that the judgment was reversed for the want of the existence of certain facts, which were not stated in the referees' report to have been found, and which it was then assumed did not exist. This was a reversal because certain necessary facts were not proved to have existed. The record presented the question whether there was an error of law, and nothing else. In deciding it as a question of law, the *Page 605 General Term erred in the effect proper to be given to the report. They held that no fact was to be taken as proved before the referee, unless it was expressly stated in the report. They held that, as the referee did not expressly find that the services were not included within the duties of corporation counsel, the court could not so assume, but must assume the contrary. This is not the rule which governs an appellate court. A report can only be set aside upon the facts contained in it; i.e., when it affirmatively finds facts which render its result erroneous. It must itself show that certain facts exist, the existence of which is inconsistent with the right of recovery. Silence is not sufficient. Every presumption is in favor of the report. The report of a referee is assumed to be right, and to be founded upon proof of every necessary fact. In the present case, it is presumed that proof was made, that the services in question were not within the plaintiff's duties as corporation attorney. Unless that fact appeared either by proof, inference or presumption, the plaintiff was not entitled to recover. In other words, if it appeared that he performed the duties as corporation attorney, his salary was his sufficient compensation. When the referees find that the plaintiff was entitled to recover, in judgment of law, they find also that the fact in question was established by competent evidence. Such have been the decisions of the Court of Appeals for many years past, and I am not aware of any decision to the contrary. (Smith v. Coe, 29 N.Y., 666; Ashley v. Marshall, id., 494; Chubbuck v. Vernam, 42N.Y., 432-5; Grant v. Morse, 22 N.Y., 323.) This construction of the referees' report will furnish an answer to each of the points made by the appellant's counsel. They are all based upon the idea of the inadequacy or the incompetency of the evidence to establish the facts. The order of the General Term should be reversed, and judgment upon the report of the referees affirmed, with costs.