Marston v. Johnson

13 How. Pr. 93

• Court: New York Supreme Court
• Decided: September 15, 1856
• Status: Published

Opinion

By the court—T. R. Strong, Justice.

It does not appear by the papers on the appeal, that the question upon which the referee is directed by the order at special term to make a report jon the evidence taken at the trial, in amendment of, or in addition to, the report made by him, is specifically raised by the pleadings; and if it is not, there is no necessity for such further report, and it ought not to be required. The fact to which the question relates can then be important only as evidence upon some issue actually made; and the issue being reported upon in due form, in case a review is desired, the fact, like all other facts which are mere evidence, must be brought before the court in another manner".

Where a referee has passed upon all the issues formed by the pleadings, so far as is material to a decision of the cause,, stating the general facts found in respect to them and his conclusions of law separately, he has discharged his whole duty in respect to form. If his general facts are not warranted by, or are contrary to, ;evidence, the remedy of the party aggrieved for. presenting the error is, by making a case within ten days after notice of the judgment. (Code, §§ 272, 268. See Lakin agt. The New-York Erie Railroad Co., 11 How. 413.)

■ The judgment, being regular, coula not be set aside for the mere purpose of relieving the defendant from the loss of the remedy by appeal, although from no fault or neglect on his part. (Humphrey agt. Chamberlain, 1 Kernan, 274.)

If the notice served, of the judgment, is insufficient—and whether it is or not, the court do not now consider—it is still in time to make a case and appeal.

The order appealed from must be reversed, with ten dollars costs.