DUGUID a. OGILVIE

DUGUID a. OGILVIE. New York Common Pleas; General Term, December, 1854. Powees of Refeeee.—Re-opening Cause.—Presumption of Payment Rebutted. Where a cause has heen submitted to a referee, he may, if he thinks the purposes of justice require it, re-open the case to hear further testimony. Where a plaintiff who claimed to recover for services rendered, gives his promissory note to the defendant long after the rendering of the services, and pays it when it falls due, it creates a presumption that no previous indebtedness existed on the part of the defendant to the plaintiff. But this presumption may be rebutted ; e. g. by showing that the note was given for a temporary loan. Appeal from a judgment upon the report of a referee. This was an action brought to recover for services rendered by plaintiff to the defendant. The issues were referred. The plaintiff having proved his services, the defendant adduced evidence tending to depreciate the value of them, and also showed, that some time after the services were rendered, the plaintiff gave his note to the defendant for seventy-five dollars, and paid it at maturity. The testimony was here closed on both sides, and the cause was summed up and submitted. The counsel for defendant contended that the making and payment of the note by plaintiff, was decisive evidence that at .that time the defendant was not indebted to the plaintiff. After the lapse of several days, the referee notified the parties to appear; and stated that he should allow the plaintiff to produce further testimony as to the consideration for the note, and the circumstances attending the making it. The defendant’s counsel objected to any further testiniony, on the ground that the case had been closed and submitted. The referee overruled the objection, and the counsel excepted. The plaintiff then called the defendant as witness; who testified that the note was given for money lent by him to the plaintiff; that the plaintiff asked him for the loan of some money, saying that he was very much in need of it, and would pay extra interést for it; and that he accordingly lent plaintiff the seventy-five dollars, taking his note; buffdid not charge him any extra interest. The referee reported in favor df the plaintiff; deciding that the giving of the note w4s sufficiently explained by the facts proved; and that under the circumstances it was not sufficient evidence that defendant was not then indebted to the plaintiff. To this decision the defendant’s counsel excepted. Judgment having been entered for plaintiff, the defendant appealed to the general term. J. W. White, for appellant, cited De Freest v. Bloomingdale, (5 Den. 304). B. Goodman, for respondent, cited Sperry v. Miller. (Seld. Notes of Cases. No. 3. p. 12). [MAJORITY — Daly, J.] Daly, J. There was no error in the referee’s allowing additional evidence to be given after the case was summed up and submitted to Mm. It appears to have been done upon Ms own motion, and was confined to a particular point. The plaintiff, long after he had performed the services for which he sought to recover, gave the defendant his promissory note of §75, and paid it when it fell due. This appearing in evidence, unaccompanied by any explanation, warranted the presumption that nothing was due to the plaintiff when he paid the amount of this note to the defendant. (De Freest v. Bloomingdale, 5 Den., 304). It was in the discretion of the referee to allow the plaintiff, even after the cause was submitted, to remove tMs presumption by showing the circumstances under which this note was given and paid. It was held in Cleaveland v. Hunter, (1 Wend., 104), that after a cause was submitted, and the referees had retired, they might •open the case to hear further testimony. In the present case the parties were fully notified as to what extent further testimony was to be allowed. The additional testimony consisted in the examination of. the defendant himself alone. It has satisfactorily explained why the note was given and paid; ■and having thereby tended to- promote the ends of justice, it would evince on the part of the court a disregard of the chief ■end and aim of any legal investigation to set the referee’s report aside upon that ground. The evidence of the defendant showed that this note was given for money borrowed of the defendant by the plaintiff upon a pressing emergency, for twenty-five days, and for which he offered to pay additional interest. The defendant having been placed on the stand as a witness by his adversary, it was competent for him, if such was the fact, to prove that the claim for services had been adjusted and paid, or give in evidence any act of the plaintiff, or any conversation, between himself and the plaintiff, from which it might be inferred that the payments made to the plaintiff, were received by him in full satisfaction of his claim. Not having done so, it may fairly be presumed that the claim for services remained unadjusted, and that the giving, and the payment of the note, was a separate and distinct transaction, upon which no presumption could be founded as to the real state of indebtedness between the parties. The evidence in respect to the value of the services, was conflicting, and. in such cases we never interfere, though I confess I am unable to decide upon what basis the referee-fixed the value of the services, as he appears to have done at $210. Some of the witnesses estimated the value of the services at a higher sum, others at a lower, and we cannot say that he erred in abating something from the estimates of the-former in deference to the opinions of the latter, or in adding something to the estimates of the latter in deference to the opinions of the former. Judgment affirmed.