Martin, Bing & Co. v. Baust

23 A.D. 234, 48 N.Y.S. 989

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1897
• Status: Published

Opinion

Per Curiam:

The respondent is doubtless correct in his contention that the plaintiff should have inserted in his proposed. case the statement that it contained all the evidence, if he wished that fact to appear in the record, because it is such a statement alone that gives the respondent information that questions of fact are to be reviewed on-appeal, and puts him on his guard to see that all the requisite testimony is inserted. . Otherwise he may assume that only questions of law are to be raised and the record need only contain sufficient evidence to support the rulings of the court below. But in this case the respondent concedes that, in fact, the case does contain all the evidence, and, therefore, we think that, as matter of favor, the appellant ought to have been given the privilege of amending his proposed case so as to contain such a statement.

The order appealed from should be reversed and motion granted" on payment by appellant of ten dollars costs, and inserting the exhibits to be designated by the respondents.

All concurred.

Order reversed and application granted on payment by appellant of ten dollars costs and disbursements, and inserting the exhibits-to be designated by the respondents.