Douglass v. Day

3 Keyes 434, 2 Trans. App. 190

• Court: New York Court of Appeals
• Decided: March 15, 1867
• Status: Published

Opinion

Sorugham, J.

There is not in this case a single exception. The case was tried before a judge without a jury on a statement of facts agreed upon by the parties.

The action was brought upon a promissory note, the com- - plaint stating that on the 22d November, 1855, there was paid on and toward the said note the sum of $166, being the avails arising from the sale of certain shares of the Van Burén Harbor company’s scrip, which was sold on the said 22d day of November, by virtue of certain agreements existing between the plaintiff and the defendants William Day and David P. Hall.

A question as to the validity of. this sale was involved in the defense, and the judge, in his decision-, found “ that on the 22d day of November, 1855, there was paid on and toward the said note the sum of $166, in the mode and manner stated in the complaint.”

This finding determined the legal question as to the validity of the sale adversely to the defendant, and if the defendants wished a* review, they should, within ten days after notice of the judgment, have filed their exceptions, as they should also have done in respect to the subsequent conclusion that the plaintiff is entitled' to recover against them.

It has been repeatedly decided that where a case does not contain any exception, the judgment cannot he reviewed in this court. (Hunt v. Bloomer, 3 Kernan, 341; Johnson v. Whitlock, id. 344; Magie v. Baker, 4 id. 434; Smith v. Grant, 15 N. Y. 590.) The judgment should be affirmed. All the judges concurring,

Judgment affirmed.