Societa Italiana Di Beneficenza v. Sulzer

29 Jones & S. 325, 47 N.Y. St. Rep. 292, 61 N.Y. Sup. Ct. 325

Opinion

Per Curiam.

The case contains no certificate or statement or other proof that the case on appeal contains all the evidence and consequently this court cannot determine that the order denying defendant’s motion for a new trial, if such order was made, is erroneous as contrary to the evidence or as against the weight of evidence.

Moreover, the case contains no order denying motion for new trial. A mere exception to the refusal to grant the motion, it has been repeatedly held, presents no question of fact for review.

For the reasons stated the exceptions only can be reviewed, and, if they are found untenable, the verdict of the jury must be held to have conclusively established that the contract sued upon was not procured from defendant by representations of existing material facts that were false and fraudulent, and also that the contract was substantially performed on plaintiff’s part.

The trial judge properly compelled the defendant to elect either to stand on her alleged counter-claim and to affirm the contract or to abandon the counter-claim as such and to stand on the alleged facts as a defence. Defendant could not have the benefits of a valid contract without bearing its burdens. She could not be permitted to affirm in part and rescind in part. To such a state of facts the case cited by appellant’s counsel (Bruce v. Burr, 67 N. Y., 237) has no application.

The offered evidence of preparations made by the defendant for the picnic was properly excluded. The only theory on which such evidence might be admissible, is that it goes to show defendant’s belief in the representations made. But no representation is available for that purpose, unless it is a representation as to an existing material fact. It was made to appear that the representations relied upon for rendering the excluded evidence admissible, related to mere expectations, and not to existing material facts. If the defendant wished to rely on the representations of expectations which she claimed plaintiff’s committee made to her, she should have exacted from the committee a guaranty of the number to be present or a guaranty of profits.

The questions at issue were fully and fairly submitted to the jury under a charge which carefully guarded every right which the defendant had, and no exception appears anywhere which calls for reversal.

The judgment should be affirmed, with costs.