Excerpt from Practice Reports in the Supreme Court and Court of Appeals, Vol. 27: Of the State of New-York
It was claimed at special term, and is now urged upon this appeal, that the defendant having given evidence before the referee tending to establish his counter claim, the referee was bound to find upon such evidence how far the defence and counter claim was established, or what facts tending to establish them were proved. The argument is, that the provision of the Code($272) requiring the referee to state the facts found by him, and his conclusions of law thereon separately, and the provision of rule 32, requiring such findings to be contained in the report of the referee, the report does not comply with the provisions of the Code and the rule, and should therefore be sent back for amendment. The mistake in this argument, in my opinion, is, that $272 of the Code requiring the referee to state the facts found by him, and. his conclusions of law separately, does not require any further finding upon the facts than such as enter into and form the basis of the judgment rendered by him. He is to state his findings upon such affirmative facts as are essential to the judgment or to sustain his conclusions of law. The referee, in deciding a case tried by him, finds certain facts established, and upon such facts he states his conclusions of law and renders judgment accordingly. He is not required, I think, to negative in express terms any other facts. Facts not found are necessarily negatived by implication. In finding the facts which he deemed established, and which he makes the basis of the judgment rendered by him, he necessarily finds that the facts alleged and attempted to be proved in hostility or in defence to the claim sought to be established by such facts, were not proved or satisfactorily established. If, for instance, the plaintiff fails to make out to the satisfaction of the referee the cause of action set out in his complaint, the referee finds no facts affirmatively, he simply dismisses the complaint.
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