Smith v. Isaacs

By the Coubt.—Fbeedmah, The issues in this case seem to have been fully, ably and fairly tried. They were determined upon a theory which in the main is correct. The facts found by the learned referee, although mostly found upon conflicting testimony, are supported ■ by the evidence, and his conclusions of law legitimately follow from the facts thus found. No error was committed in refusing to find as requested by the defendant. If the reception in evidence of the book of plaintiffs’ foreman constituted error, it will not avail the defendant, for the reason that he did not rest upon his exception, but that in the course of the defense he himself supplied the evidence upon which, independently of the said book, the referee rendered judgment. A judgment will not be reversed for the refusal to grant a nonsuit, though the plaintiff had at the time failed to prove his case, if the necessary evidence was supplied afterwards by either party (Schenectady & Saratoga It. It. Co. v. Thatcher, 11 N. Y. [1 Kern.] 102, per Johhsoh, J. ; Kent v. Harcourt, 33 Barb. 491; Colvin v. Burnet, 2 Sill, 620; Hearsey v. Pruyn, 7 Johns. 179). The judgment should be affirmed, with costs. Cubtis and Speib, JJ., concurred.