Allen v. Ryan

218 A.D. 201, 218 N.Y.S. 171, 1926 N.Y. App. Div. LEXIS 5891

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 1926
• Status: Published

Opinion

Per Curiam.

This is an appeal from an order of the Monroe Special Term denying appellant’s motion to amend or resettle the case and attach thereto a certificate to the effect that the case contains all the evidence. -

The action was brought to recover the balance of an alleged subscription to capital stock of the American Railway Brotherhood Association, Inc.

The case was tried by the court without a jury and the court made certain findings that are printed in the record.

Appellant made certain requests to find which are also printed with the rulings of the trial justice thereon, but it is the contention of appellant that exceptions which he claims to have taken to certain findings of the trial court and to the court’s refusal to find certain propositions as requested by him were not printed. They are printed in the record but not included in the case.

The appellant is entitled to have them included in the case and covered by the certificate of the justice. (Young v. Young, 133 N. Y. 626.)

That case construed sections 994 and 997 of the Code of Civil Procedure. Those sections have become sections 445 and 576 of the Civil Practice Act without material change. That case decided that the appellant is entitled to have the exceptions filed by him included in the case on appeal.

Appellant further contends that the certificate of the trial justice at the end of the case is insufficient in that it does not certify that the case contains all the evidence, etc.

The certificate of the trial justice is as follows: “ The foregoing case with exceptions contains all the evidence necessary and pertinent to the determination of all of the questions presented on the appeal is hereby settled as above and ordered to be filed.” This certificate is insufficient. (Rules Civ. Prac. rule 232; Leeds v. Joyce, 200 App. Div. 126.)

If the justice finds that all the evidence is not included he can require the attorneys to make additions. If a stipulation is made as pointed out in Derby v. General Electric Co. (208 App. Div. 529) such stipulation would cover the omitted evidence, and the justice might well certify that such case contained all the evidence.

The order should be reversed, with ten dollars costs and disbursements, and the case remitted to the trial justice to be resettled in accordance with the opinion. '

All concur. Present — Hubbs, P. J., Clark, Davis, Sears and Crouch, JJ.

Order reversed, with ten dollars costs and disbursements, and case remitted to the trial justice to be resettled in accordance with the opinion.