COURT OF APPEALS.

#### William Barker agt. William White, and others.

Where the evidence *on*the trial presents a question of *fact for*the referee to decide, his iinding on such fact must be hel,d conclusive on the parties.

Where the action js in equity, the giving or withholding of *costs*is in the discretion of the referee. As a general rule the court will not attempt to control that dial* * cretion bn appeal. Certainly not except in case of its palpable abuse.

' The plaintiff having failed in the action on the principal subject of litigation; recovering however on one minor branch of it, was allowed his costs of action, excepting two-thirds of the disbursements, and was charged with the costs of one of the defendants defense:

*Meld,*that the adjustment of the costs was not so unfair and inequitable as to require this court *to interfere*with the decision *of*the referee.

*June Term,*1867.

Bockes, J.

This action was in equity, by one member of a partnership to enforce certain claims'against the other members, growing out of the firm business.

It was referred to a referee to hear and determine, who reported in favor of the plaintiff as to one claim, and against him as to the other; and the referee adjusted the costs be-, tween the parties by allowing them in part to the plaintiff, and in part against him, to the defendants.

Judgment was entered as directed by the referee. The plaintiff appealed therefrom* to the general term, in so far as his claim set forth m the complaint was disallowed, and also as to the adjudication *of the*question of costs. The judgment was affirmed at general term, and the plaintiff appealed to this court.

In the complaint the plaintiff charged, that during the . continuance of the partnership one of the firm, George W. Sherman, now deceased, whose estate is represented in this *505action by his administratrix and administrator, had in his possession the sum of six hundred dollars, which belonged to the firm, and which sum he loaned to one Albert Rodgers, on his own individual responsibility, promising to make the sum good to the firm ; that such sum had never been repaid to the firm ; and lie claimed that Sherman’s estate should be charged with this sum and interest.

The referee found in favor of the plaintiff on this allegation, and allowed a recovery in his favor, and against Sherman’s estate, for his proportion of the claim. In this determination of the referee the parties acquiesced, neither appealing therefrom. This branch of the case, therefore, requires no examination.

The plaintiff also charged in the complaint, that during the continuance of the copartnership he lent and advanced to the firm, of his own individual funds, the sum of one thousand dollars, which sum was used in the partnership business, and that the firm gave him a promissory note therefor, dated April 24, 1854,” signed in the firm name, and that he still held the same, which was due and wholly unpaid; and he claimed that this sum should be charged against the members of the firm, respectively, in due proportion.

This allegation of the complaint was denied by the other *parties;*and they averred, on information and belief, that if' any such paper existed it was made and placed in the plaintiff’s hands for a special purpose, to which it was never in fact appropriated, and that it never had any legal existence as a valid instrument binding on the firm.

The litigation before the referee was confined principally . to this branch of the case, and the appeal was brought to review the decision of the referee thereon.

The note described in the complaint was produced by the plaintiff, and was put in evidence.

The signature was shown to be in the handwriting of Mr. White, a member of the firm.

*506The plaintiff gave evidence tending to prove that the note was given him for money loaned, as alleged in the complaint.

' On the other-hand the evidence offered by the defendants tended strongly to contradict the plaintiff’s case, and left it quite doubtful, if not entirely improbable, that the note was given under the circumstances and for the purpose asserted by the plaintiff. The evidence certainly made it a question of fact, for the referee. He found emphatically against the plaintiff—that he did not lend or advance the one thousand dollars to the firm, nor did the firm make and give him the firm note, as alleged in the complaint; nor was that sum due and owing to him from the copartnership; and while he found that the note was signed by the firm name, in form as stated in the complaint, yet he also further found, that it was never held and owned by the plaintiff, as claimed by him. This finding of fact on the evidence must be held conclusive on the parties, and as a consequence determines the case against the plaintiff, in so far as he made a claim against the other members of the firm, on the note. His case was not sustaned on this point of the litigation, and the judgment in that regard was properly affirmed by the general term.

Ho other question is raised on this appeal on the merits.. - It is insisted, hence, that the referee eried in the adjustment of the costs between the parties. The action being in equity, the giving or withholding of costs was in the discretion of the referee. As a general rule, the court will' not attempt to control that discretion on appeal. Certainly not except in case of its palpable abuse.

Such is not this case.

The-plaintiff failed in the action on the principal subject of litigation ; recovering, however, on one minor branch of it. He was allowed his costs of the action, excepting two-thirds of the disbursements, and was charged with the costs of White’s defense.

*507We cannot see that the adjustment of the costs between the parties was so unfair and inequitable as to require this court to interfere with the decision of the referee.

The judgment of the supreme court should be affirmed, with costs of the appeal against the appellant.

All concur.

Affirmed.