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Trial Term.

sought, and is

erefore unnecessary on an appeal from a judgment on a verdict of the jury and from an order denying a new trial on the minutes, sine such an appeal raises the question of the sufficiency of the evidence to sustain the verdiet, and is notice that the facts will be reviewed.

[May,

Settlement of case and exceptions on appeal.

Action by John Gibson against the Metropolitan Street Railroad Company to recover for personal injuries. The judgment is for the plaintiff for personal injuries caused by the negligence of the defendant, entered upon a verdict. The appeal is from the judgment, and also from an order denying a motion on all the grounds for a new trial on the judge's minutes. Amendment proposed to case on appeal. Allowed.

CERTIFICATION OF COMPLETENESS OF EVIDENCE IN CASE ON APPEAL,-— continued.

cases tried before a jury nor in other cases unless some questions are intended to be raised on the appeal which are not raised by exceptions taken during the trial or filed after decision or report. Those questions are questions of fact, which arise when the findings of the court or referee are challenged as against the weight of the evidence. Obviously in such cases the evidence should be complete. In appeals from judgments on verdicts the motion for a new trial raises all such questions.

1. Judgments on decisions or reports.

Where the trial is before a judge or referee, questions of fact cannot be reviewed on appeal in the absence of a statement that the case on appeal contains all the evidence given on the trial.

Porter v. Smith, 107 N. Y. 531; 14 N. E. 446.

Goodrich v. Gilles, 62 Hun, 479; 42 St. Rep. 319; 17 Supp. 88.

Grant v. Lawrence, 79 Hun, 565; 61 St. Rep. 589; 29 Supp. 901.

Wellington v. Continental C. & I. Co., 52 Hun., 408; 24 St. Rep. 678; 5 Supp. 587.

West v. Wright, 86 Hun, 436; 67 St. Rep. 627; 33 Supp. 898.

Martin v. Moore, 3 App. Div. 416; 74 St. Rep. 146; 38 Supp. 652.

Flood v. Cain, 78 Hun, 378; 60 St. Rep. 719; 29 Supp. 156.

Hinds v. Kellogg, 37 St. Rep. 356; 13 Supp. 922.

Donohue v. Hammell, 17 St. Rep. 994; 1 Supp. 401.

Griffiths v. Phelps, 21 Week. Dig. 390.

Levi v. Newhall, 30 St. Rep. 283: 9 Supp. 423; 58 Super. 557.
Oishei v. Gilbert, 30 St. Rep. 233; 9 Supp. 402.

Gibson v. Metropolitan Street R. Co.

1900]

B. Frank Wood, for plaintiff.

Henry A. Robinson, for defendant.

GAYNOR, J. In the proposed case the evidence of the two physicians showing the extent of the injury to the plaintiff and the time he was disabled from it is omitted, and the plaintiff proposes an amendment that it be inserted. The appeal from the order denying the motion on the minutes for a new trial raises the question whether the verdict is excessive, or contrary to the evidence, and it is therefore for the plaintiff to see that all the evidence on those heads be in the case. He would not be pro

CERTIFICATION OF COMPLETENESS OF EVIDENCE IN CASE ON APPEAL,continued.

Fell v. N. Y. Locomotive Works, 20 St. Rep. 577; 3 Supp. 381.
Averill v. Hurd, 15 Civ. Pro. 162; 17 St. Rep. 675; 2 Supp. 166.
Hagerdorn v. Dodge, 2 St. Rep. 335.

Slatterly v. Schwannecke, 44 Hun, 75; 7 St. Rep. 430.

Mullinhoff v. Scherer, 15 Civ. Pro. 160.

Baker v. Crosby, 33 St. Rep. 757; 11 Supp. 575; 58 Super. 577. Davis Sewing Machine Co. v. Best, 50 Hun, 76; 23 St. Rep. 876; 4 Supp. 510.

Spence v. Chambers, 39 Hun, 193.

Harkness v. N. Y. El. R. Co. 55 Super. 532; 11 St. Rep. 732.

The necessity for such certificate arises from the fact that, in its absence, there is no notice to the respondent that the appellant wishes to review any question except the questions of law which the exceptions taken during the trial, and filed after the decision, raise.

Porter v. Smith, 107 N. Y. 531; 14 N. E. 446.

In the absence of such certificate it will be presumed that there was additional evidence given on the trial sufficient to establish all questions of fact in favor of the respondent.

Howland v. Howland, 20 Hun, 472.

The court of appeals in Cox v. James, 45 N. Y. 557 had ruled directly opposite to this view, but three years later (1874) in Perkins v. Hill, 56 N. Y. 87, 91, announced the contrary without noticing Cox v. James, and the judge who wrote the opinion in Cox v. James concurred in Perkins v. Hill. Any question as to the correct rule is settled by Halpin v. Phenix Ins. Co. 118 N. Y. 165; 23 N. E. 482.

The exceptions which the appellant files, in order to review the finding of a court or referee, raise only questions of law and serve as notice to

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tected by my striking from the case the statement at the end of it that it contains all of the evidence, for the questions raised by an appeal from such an order are up without the case containing such a certificate. Such a certificate has no place in a case on appeal where there was a jury trial It only has place and effect where the trial was before a judge or a referee, as it there serves in the proposed case as the only notice the respondent has that a review on the facts is to be sought by the appellant, as was decided in Porter v. Smith, 107 N. Y. 531; 14 N. E. 446. That decision has no reference or application to appeals in cases tried before a jury. In such cases the notice of appeal from the order denying the motion on the minutes for a new trial serves as such notice that the case is to be reviewed on the facts. That is what the appeal from such an order means. The few decisions that such a certificate was necessary in order to review the facts on appeal from such an order were deemed inadvertent all along by the bar, and must now be deemed to be overruled. Rosenstein

CERTIFICATION OF COMPLETENESS OF EVIDENCE IN CASE ON APPEAL, — continued.

the respondent that he must insert by amendment in the proposed case any omitted evidence which he deems necessary to sustain the ruling, just as a certificate that the case contains all the evidence notifies him of the appellant's intention to review the question of error in findings of fact based on the allegation of insufficient proof.

Halpin v. Phenix Ins. Co. 118 N. Y. 165; 23 N. E. 482.

It only devolves upon the respondent to see that enough evidence is contained in the case as settled to support the findings excepted to.

Whyte v. Denike, 53 App. Div. 320; 99 St. Rep. 577; 65 Supp. 577.

The only questions of law which arise are those in connection with the admission or rejection of evidence, and whether the conclusions of law are supported by the facts found, and whether any material finding of fact is without evidence to support it.

National Harrow Co. v. E. Bement & Sons, 163 N. Y. 505; 57 N. E. 764. The rule of practice requiring a statement of the completeness of the evidence, when the appellant desires to review questions of fact on appeal from a judgment entered on a report of a referee or a decision of a court, is so well settled that it would undoubtedly be held error for the appellate division to reverse on the facts in the absence of such statement.

In Aldridge v. Aldridge, 120 N. Y. 614; 24 N. E. 1022, the court of appeals indicated that litigants had the right to expect the general term to

1900]

Gibson v. Metropolitan Street R. Co.

v. Fox, 150 N. Y. 354; 44 N. E. 1027; Hewett v. Town of Thurman, 41 App. Div. 6; 92 St. Rep. 83; 58 Supp. 83. Decisions to the same effect made since the decision in the Rosenstein Case, like that in Hunt v. Webber, 22 App. Div. 631; 82 St. Rep. 24; 48 Supp. 24, must certainly have been inadvertent. The decision as reported in Martin v. Baust, 23 App. Div. 234; 82 St. Rep. 989; 48 Supp. 989, is a sample of blind reporting. The reporter does not reveal whether the appeal was from a trial by a jury, or by a judge or referee, which makes all the difference in the world. The notice of appeal from the order denying the motion for a new trial is notice to the respondent here that the appellant will claim on the appeal that the verdict is excessive and contrary to the evidence, and the respondent must protect himself by having the case contain all the evidence on those heads.

The amendment is allowed, unless the appellant puts in the case a statement that it does not contain all of the evidence on the nature, extent and effect of the injury.

CERTIFICATION OF COMPLETENESS OF EVIDENCE IN CASE ON APPEAL,continued.

adhere to that rule, although in that case the decision of the general term reversing on the facts was reversed, not because the general term had no right to review the facts but because the reversal was wrong, if had had such right.

Such certificate is unnecessary to review a finding of the court on the ground that it is without evidence tending to support it, that question be ing one of law.

Halpin v. Phoenix Ins. Co. 118 N. Y. 165; 23 N. E. 482.
Brayton v. Sherman, 119 N. Y. 623; 23 N. E. 471.

Van Bokkelin v. Berdell, 130 N. Y. 141; 29 N. E. 254.

In Kissam v. Kissam, 21 App. Div. 142; 81 St. Rep. 270; 47 Supp. 270, in affirming a judgment entered on the report of a referee, Hatch, J., said: "If, however, the evidence in the record was insufficient to uphold the judgment, we should be compelled to reach the same conclusion, for the reason that there is no statement that the case contains all the evidence, and we must, therefore, presume that evidence was given sufficient to support the judgment."

This was not a correct application of the rule. There must be evidence in the record to support the judgment. But in the absence of a certificate of completeness of the evidence, there can be no balancing of the evidence. If there was any evidence to support the finding on which the judgment

CERTIFICATION OF COMPLETENESS OF EVIDENCE IN CASE ON APPEAL, — continued.

rested, the absence of the certificate permits the presumption that there was other evidence sufficient to sustain it as against anything in the case which tends to overthrow it.

If the case is certified to contain all the evidence, questions of fact are open to review on appeal although no exceptions to the findings of the court or referee have been filed.

Watts v. Hempstead, Board of Education of, 9 App. Div. 143; 75 St. Rep. 599; 41 Supp. 141.

But where the decision is a short decision under § 1022 of the Code of Civil Procedure, an exception thereto must be filed in order to present any question for review.

Nat. Pro. Assn. etc. v. Cummings, 53 App. Div. 227; 99 St. Rep. 946; 65 Supp. 946.

Contra, Clements v. Beale, 53 App. Div. 416; 99 St. Rep. 1093; 65 Supp. 1093.

In the case last cited it was held that questions raised by exceptions taken during the trial could be reviewed even in the absence of an exception to a short decision.

2. Judgments on verdicts.

On appeal from a judgment entered on a verdict it is assumed that the case contains all the evidence on any question raised by any exception appearing in the case and a certificate of the completeness of the evidence is not necessary.

Rosenstein v. Fox, 150 N. Y. 354; 44 N. E. 1027.

When the appellant seeks to review a question of law only-such as the correctness of a nonsuit-no certificate as to completeness of evidence is necessary.

Zimmerman v. Union R. Co. v. N. Y. 3 App. Div. 219; 74 St. Rep. 18; 38 Supp. 362.

Hewitt v. Town of Thurman, 41 App. Div. 6; 92 St. Rep. 83; 58 Supp.

83.

Likewise, as to review of a direction of a verdict.

Brown v. James, 2 App. Div. 105; 73 St. Rep. 144; 37 Supp. 529.

A certificate of the completeness of the evidence is not necessary to review the correctness of the denial of a motion to dismiss the co

complaint.

Wynne v. Haight, 27 App. Div. 7; 84 St. Rep. 187; 50 Supp. 187. Compton v. Bowns, 5 Misc. 213; 54 St. Rep. 795; 25 Supp. 465: 23 Civ. Pro. 225.

The criticism in the case in the text of Hunt v. Webber, 22 App. Div. 631; 82 St. Rep. 24; 48 Supp. 24, is well founded. The motion for a new trial on the minutes and the appeal from the order denying the same are notice to the respondent that the appellant will seek to review questions of fact,

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