Sheridan v. Presas

23 Misc. 757, 50 N.Y.S. 667

Opinion

Per Curiam.

The trial justice, pursuant to the requirements of section 1726 of the Code of Civil Procedure, fixed the value of the chattels awarded to the plaintiff at $250. We are, however, unable to discover, in the record before us, any competent evidence of lvalue on which to rest such a determination. It follows that a new trial must be ordered. Since another trial is to be had, we deem it proper to call the attention of counsel for the defendant to the fact that there is nothing in the record showing that the articles in question are the same as those which were pledged by Presas to Plaza. It sometimes happens that cases are tried upon the assumption by both parties that certain facts are not, in dispute although formally in issue under the pleadings. While this may be clear to the trial justice for reasons which do not- appear on the record, the appellate court, having only the record before it, does not enjoy the same advantage. Where a party expects to appeal in case an adverse judgment is rendered against him, he should present his evidence in such a manner that the record will satisfactorily disclose all of the facts on which he relies in support of his position.

The judgment is reversed and a new trial ordered, with costs to the appellant to abide the.event.

Present: Beekmak, P. J., Gildersleeve and Giegerich, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.