Empire Trust Co. v. Devlin

45 Misc. 583, 90 N.Y.S. 1066

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 15, 1904
• Status: Published

Opinion

Freedman, P. J.

As the case on appeal does not, by way of a certificate or stipulation, affirmatively show that it contains all the evidence adduced at the trial, this court will not inquire whether the verdict is contrary to the evidence or against the weight of evidence. For the necessity of such a certificate or stipulation to enable the appellate court to weigh the facts, see Caven v. City of Troy, 15 App. Div. ; Brooker v. Filkins, 9 Misc. Rep. 146; Jeffers v. Bantley, 47 Hun, 90; Revelski v. Droesch, 6 App. Div. 190; and a large number of other cases collected under rule 32 of the General Rules of Practice in the annotated edition of said rules. The case of Rosenstein v. Fox, 150 N. Y. 354, and other cases cited by the appellant do not hold the contrary. They are simply to the effect that in the absence of such a certificate or stipulation the right to a review of the exceptions still remains.

We have examined the exceptions appearing in the record and taken by the appellant and find that none of them presents reversible error. The plaintiff was not as matter of law entitled to the direction of a verdict in its favor. There was sufficient evidence to require the submission of the case to the jury and it was submitted to them under a charge to which no exception was taken.

The order should be affirmed, with costs and disbursements.

Bischoff and Girdersleeve, JJ., concur.

Order affirmed, with costs and disbursements.