Porter v. . Smith

14 N.E. 446, 107 N.Y. 531, 12 N.Y. St. Rep. 479, 62 Sickels 531, 1887 N.Y. LEXIS 1035

• Court: New York Court of Appeals
• Decided: December 13, 1887
• Status: Published

Opinion

Finch, J.

The General Term refused to review the questions of fact sought to be argued by the appellants, upon the .ground that the case as made did not contain a statement that all the evidence given upon the trial was set forth within it; and the correctness of such ruling presents the sole question on this appeal. The necessity of the certificate has been asserted several times in the Supreme Court (Spence v. Chambers, 39 Hun, 193; Howland v. Howland, 20 Hun, 472), and has been justified upon the ground of the changed practice under the new Code, which forbids exceptions to findings of fact. (§ 992.) The theory upon which a ease is prepared and settled has long been understood to be that the .appellant should insert in it all the evidence bearing upon the questions intended to be raised, and the respondent add by amendment whatever he deemed necessary to a solution of those questions. An exception appearing in the proposed case .serves as a notice to the respondent of an intention to raise the question of error in the ruling excepted to, and puts upon him the. responsibility of adding by amendment any needed proof. Thus on a motion for a nonsuit upon the ground that the evidence does not show a cause of action, an exception to the ruling warns the respondent that he must add any omitted fact essential in his judgment to sustain the ruling. And where, under the old Code, which permitted exceptions to findings of fact, such an exception was taken, it was notice of .an intention to assail such finding as erroneous, and if any proof necessary to sustain it was omitted from the proposed «ase it became the duty of the respondent to supply it. We, therefore held that the General Term, on appeal, should assume that the ease contained all the evidence bearing upon the questions sought to be raised. (Perkins v. Hill, 56 N. Y. 87.) But the situation is radically changed by the provision of the new Code, forbidding exceptions to findings of fact. Under that practice the respondent gets no warning or notice of an intention to review questions of fact, unless the case certifies that all the evidence has been included. If it so certifies the respondent must look to it that nothing which he deems essential is-omitted, but if it does not so certify he is not in fault for supposing that questions of law only are intended to be reviewed, and omitting to load the ease with needless proof. These views of the General Term seem to us sensible and well founded, and since they more immediately concern the duty of that court and the practice at its bar, they should have great weight with us. We have fully considered the suggestions to the contrary presented by the appellants, but they have not convinced us that a different rule should be established. Its tendency would be to compel respondents to require in every case the insertion of all the evidence as a measure of safety, and though, as the appellants suggest, that difficulty might be removed by some action of the trial court in settling-the case, and in some way putting that action in the record, it. would hardly be wise to reverse a rule already adopted, which adequately reaches the desired result, in order that some other-rule, no more effective or convenient, should be substituted.

We therefore deem it our duty to approve of the practice adopted.

The judgment should be affirmed, with costs.

All concur, except Huger, Ch. J., not voting.

Judgment affirmed.