Preston v. Arthur

Clarke, J.: This case was tried before the same referee and at the same' time as that of Preston v. Albee, No. 2 (120 App. Div. 89), opinion filed herewith, and presented-the same character of case, the mortgage in suit being upon the house adjacent to the premises- under foreclosure in action Ho. 2. In action Ho. 2 the referee admitted- all the. documentary evidence and then dismissed the complaint. In the case under con [94] sideration he excluded all of the documentary evidence, including the mortgage sued on, although acknowledged and recorded, and the bond, although executed and acknowledged, the only.document which he did- r'eceive being a copy of the articles of incorporation of the company. All.of this, evidence having been excluded, the plaintiff rested, whereupon the referee dismissed tli.e complaint -and made findings of fa'ct which .Were identical with those made by him in action No. 2.' He found, however, “ that the plaintiff duly establishéd by proof thé appointment ánd qualification of Charles M.. Preston as receiver of the New York Building-Loan- Banking Company,” although he had excluded, the certified copy of .the-judgment against the company .appointing Preston receiver, and a certified copy of the bond given.by Preston as such-receiver. . Such a judgment cannot- stand. -I-t is, therefore, reversed and a new trial ordered before another referee, with costs to the appellant to abide the. event! . - : - Ingraham, Laughlin, Scott and Lambert, JJ., concurred. Judgment, reversed-, new trial' ordered before anothér referee, costs to appellant to abide event. Settle order on notice.