Mullinhoff v. Scherer

The Superior Court of New York City

Mullinhoff v. Scherer

17 N.Y. St. Rep. 387

CourtThe Superior Court of New York City

DecidedJune 29, 1888

StatusPublished

This text of 17 N.Y. St. Rep. 387 (Mullinhoff v. Scherer) is published on Counsel Stack Legal Research, covering The Superior Court of New York City primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mullinhoff v. Scherer, 17 N.Y. St. Rep. 387 (N.Y. Super. Ct. 1888).

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Opinion

Hatch, J.

The supreme court has decided that when a verdict is sought to be set aside as being against the weight of evidence, after a motion has been made for a new trial upon the minutes, it is essential that the case upon appeal state that it contains all the evidence given upon the trial, otherwise the court will assume that there was evidence sufficient to warrant the verdict rendered. Cheney v. N. Y. C. and H. R. R. R. Co., 16 Hun, 415-419.

The same rule is applied to .a case upon appeal from the decision of a court or referee; then if the appellant intends raising on appeal the question that a finding is against the weight of evidence, the case must show that it contains all of the evidence bearing upon the question of fact sought to be reviewed. Porter v. Smith, 35 Hun, 118; Spence v. Chambers, 39 id., 193.

The case, upon this appeal, does not state that it contains all the evidence given upon the trial. We must therefore assume that there was sufficient evidence to sustain the verdict given. We have, however, examined the evidence appearing upon the record. It appears that the testimony was conflicting, no motion for a nonsuit or request to direct a verdict in favor of defendant was made, and no exception was taken to the charge of the court. The case was fairly submitted, and if we were at liberty to pass upon the question sought to be raised, we are not prepared to say that we should reach a different conclusion than that arrived at by the trial court.

The judgment and order appealed from is therefore affirmed, with costs.

Beckwith, Ch. J., concurs; Titus, J., not sitting.

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Hatch, J.

The supreme court has decided that when a verdict is sought to be set aside as being against the weight of evidence, after a motion has been made for a new trial upon the minutes, it is essential that the case upon appeal state that it contains all the evidence given upon the trial, otherwise the court will assume that there was evidence sufficient to warrant the verdict rendered. Cheney v. N. Y. C. and H. R. R. R. Co., 16 Hun, 415-419.

The same rule is applied to .a case upon appeal from the decision of a court or referee; then if the appellant intends raising on appeal the question that a finding is against the weight of evidence, the case must show that it contains all of the evidence bearing upon the question of fact sought to be reviewed. Porter v. Smith, 35 Hun, 118; Spence v. Chambers, 39 id., 193.

The case, upon this appeal, does not state that it contains all the evidence given upon the trial. We must therefore assume that there was sufficient evidence to sustain the verdict given. We have, however, examined the evidence appearing upon the record. It appears that the testimony was conflicting, no motion for a nonsuit or request to direct a verdict in favor of defendant was made, and no exception was taken to the charge of the court. The case was fairly submitted, and if we were at liberty to pass upon the question sought to be raised, we are not prepared to say that we should reach a different conclusion than that arrived at by the trial court.

The judgment and order appealed from is therefore affirmed, with costs.

Beckwith, Ch. J., concurs; Titus, J., not sitting.

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Bluebook (online)

17 N.Y. St. Rep. 387, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mullinhoff-v-scherer-nysuperctnyc-1888.