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

so that he must complete the evidence upon which he expects to sustain the judgment, if the proposed case is incomplete.

The case of Gregory v. Clark, 32 Misc. 152; 99 St. Rep. 687; 65 Supp. 687, decided subsequent to the case in the text must also be deemed inadvertent as to the necessity of a certificate.

The dictum of O'Brien, J., in Murphy v. Hays, 68 Hun, 450; 52 St. Rep. 749; 23 Supp. 70, to the effect that in that case, which was an appeal from a judgment on a verdict, the question as to whether or not the verdict was against the weight of evidence could not be considered, because the case did not state that it contained all the evidence, was inadvertent. It was true that such question could not be reviewed but for a different reason, to wit, the absence of a motion for a new trial and of an appeal from an order denying the same.

Likewise Beebe v. N. Y. & N. E. R. Co. 91 Hun, 294; 36 Supp. 1122.

So too of the dictum of Hatch, J., in Winter v. Crosstown St. R. Co. of Buffalo, 8 Misc. 362; 59 St. Rep. 598; 28 Supp. 695.

Likewise, Haebler v. Luttgen, 2 App. Div. 390; 73 St. Rep. 376; 37 Supp.

794.

Brown v. James, 9 App. Div. 139; 75 St. Rep. 1473; 41 Supp. 1107.

The error arose from attemting to apply to appeals from judgments on verdicts a rule established only for appeals from judgments on reports of referees and decisions of courts. In the former the extent of review of facts is determined by the exceptions in the case and the motion for a new trial on the minutes.

Likewise, Murphy v. Board of Education of Yonkers, 53 Hun, 171; 25 St. Rep. 154; 17 Civ. Pro. 170; 6 Supp. 99.

Wynne v. Haight, 27 App. Div. 7; 84 St. Rep. 187; 50 Supp. 187.
Sloane v. Lockwood Chemical Co. 45 St. Rep. 265; 18 Supp. 442.
Grening v. Malcom, 83 Hun, 9; 64 St. Rep. 325; 31 Supp. 612.
Gaylord v. Gallagher, 1 Misc. 328; 48 St. Rep. 704; 20 Supp. 682.
Brown v. Fishel, 83 Hun, 103; 63 St. Rep. 845; 31 Supp. 361.
Hyland v. Anderson, 1 Misc. 337; 48 St. Rep. 665; 20 Supp. 707.
McNish v. Peekskill, 91 Hun, 324; 72 St. Rep. 294; 36 Supp. 1022.
Katz v. Koster, 6 Misc. 327; 58 St. Rep. 142; 26 Supp. 785.
Revelski v. Droesch, 6 App. Div. 190; 39 Supp. 1008.

Caven v. Troy, 15 App. Div. 163; 78 St. Rep. 244; 44 Supp. 244.
Whiting v. Standard Gaslight Co. 83 Hun, 4; 31 Supp. 1135.
Simonson v. Krollfeiffer, 25 St. Rep. 149; 6 Supp. 115.

Arnstein v. Haulenbeck, 16 Daly, 382; 34 St. Rep. 297; 11 Supp. 701.
Davey v. Lohrmann, 1 Misc. 317; 48 St. Rep. 716; 20 Supp. 675.

The rule was even extended to criminal cases and it was held that a conviction could not be assailed as against the weight of evidence unless the case showed that it contained all the evidence.

People v. Bradner, 44 Hun, 233; 7 St. Rep. 846; 26 Week. Dig. 545.

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

In Lydecker v. Nyack, Vil. of, 6 App. Div. 90; 39 Supp. 509, while, impliedly at least, recognizing the perverted rule requiring the certificate in appeals from judgments on verdicts in order to review questions of fact, the court held that the review of a verdict which there was no evidence to support presented a question of law and a certificate was not requisite.

h. Form of certificate.

A statement that the case contains all the "testimony" is not equivalent to a statement that it contains all the "evidence."

Grening v. Malcom, 83 Hun, 9; 64 St. Rep. 325; 31 Supp. 612.
Koehler v. Hughes, 73 Hun, 167; 57 St. Rep. 131; 25 Supp. 1061.
Randall v. N. Y. El. R. Co. 76 Hun, 427; 59 St. Rep. 352; 27 Supp. 1062.
Hyman v. Friedman, 45 St. Rep. 636; 18 Supp. 446.

McCarthy v. Gallagher, 4 Misc. 188; 53 St. Rep. 176; 23 Supp. 884.

Some of these cases were appeals from judgments on verdicts in which no certificate was necessary but on the question of the form of the certificate they state the approved rule.

In Zimmerman v. Union R. Co. of N. Y. 38 Supp. 362, Cullen, J., expressed his unwillingness to concede that the term "testimony" was not equivalent to "evidence" in such certificate.

See too, Hallenbeck v. Smith, 51 App. Div. 344; 98 St. Rep. 957; 64 Supp. 957.

A certificate that a case contains "all the testimony given, all of the exhibits of the parties, and all the proceedings had upon the trial" is equivalent to a certificate that it contains all the evidence.

Orcutt v. Rickenbrodt, 42 App. Div. 238; 93 St. Rep. 1008; 59 Supp. 1098.

In a dictum in Dibble v. Dimick, 143 N. Y. 549, 555; 38 N. E. 724, 730, O'Brien, J., said of the form of the certificate, “But no particular form of words is necessary. A statement that the case contains all the testimony is sufficient in the absence of some objection on the part of the defendant that some material part of it has been omitted. The appealing party can then by motion correct the record by inserting it. Where, however, both sides proceed to argument and submit the case with a statement that it contains all the testimony, without any objection as to the power of the court over the whole case, the court is warranted in assuming that all the evidence is in the case and should pass upon the facts."

A certificate that "this case does not contain all the evidence. There was additional evidence for the defendant, which was cumulative,” does not exclude the presumption that evidence for the plaintiff-respondent, which does not appear, sustained the findings and such certificate does not open the facts for review.

Guion v. Mundy, 45 St. Rep. 667; 18 Supp. 445.

A certificate that, "the foregoing case contains all the evidence relat

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

ing to the matters contained in said case and bill of exceptions," is sufficient.

Oaksmith v. Baird, 19 App. Div. 334; 80 St. Rep. 262; 46 Supp. 262. In the case last cited Van Brunt, J., said, "If the case contains all the evidence, relating to the matters contained in the case, which are necessarily the only ones that can be considered here, it is a compliance with the rule. It is not necessary that the case should contain all the evidence taken on the trial when only a portion of the cause of action or of the defenses litigated on the trial is brought up for review."

This also was a case where no certificate was necessary.

A certificate in the words, "The foregoing contents are all the testimony and proceedings taken and heard upon the trial of said action," was said to be "informal and irregular."

Becker v. Fischer, 13 App. Div. 555; 77 St. Rep. 685; 43 Supp. 685.

It is to be inferred that the court in the case last cited considered a formal and regular certificate necessary to review the disputed questions of fact. But the case was one in which such certificate was unnecessary being an appeal from a judgment on a verdict and the refusal of a new trial.

A certificate that a case "is a complete record of all the testimony taken on the trial of the above-entitled action, and is a true record of all the proceedings thereat” is not equivalent to a certificate that a case contains all the evidence.

Hannon v. Gallagher, 19 Misc. 347; 77 St. Rep. 492; 43 Supp. 492.

This ruling was made in a case in which there was no necessity for a certificate of any kind, since the appellant was seeking to review a refusal to dismiss the complaint on a trial before a jury and an exception to such refusal puts upon the respondent the burden of getting into the case all the evidence needed to sustain the ruling.

A certificate that a case "contains all the evidence bearing upon the exceptions taken on the trial" is sufficient.

McEntyre v. Tucker, 5 Misc. 228; 54 St. Rep. 826; 25 Supp. 95; 23 Civ. Pro. 171.

In this case the court missed the point of the rule requiring any certifi cate of the completeness of the evidence. "Exceptions taken on the trial" could only raise questions of which the respondent has ample warning. without such certificate. The certificate approved in that case in no way enlarged the scope of review beyond that opened by the exceptions, and was insufficient to open the findings to review as against the weight of evidence.

A statement that the "foregoing presents all the evidence bearing upon the extent of plaintiff's damages" is not sufficient to open to review on the facts a finding of nominal damages in favor of a plaintiff.

Katz v. Koster, 6 Misc. 327; 58 St. Rep. 142; 26 Supp. 785.

An affidavit of appellant's attorney annexed to the case as to the com

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

pleteness of the evidence will not dispense with the necessity of a certificate to that effect as a part of the case itself as settled.

Gorham Mfg. Co. v. Seale, 3 App. Div. 515; 73 St. Rep. 674; 38 Supp.

307.

c. Practice-Amendment.

If an appellant in good faith serves a proposed case containing a statement that it contains all the evidence and the respondent fails to propose any amendments, the appellant is entitled to have it settled as served and the trial judge is not justified in striking out such statement because he deems it untrue.

Renwick v. N. Y. El. R. Co. 59 Super. 96; 36 St. Rep. 682; 13 Supp. 600. Where, after a case has been settled without containing a certificate of the completeness of the evidence, the appellant seeks to have it amended by the insertion of such certificate, it is erroneous to permit such amendment with the privilege to the respondent to supply the lacking evidence, but the appellant should supply it, when he seeks the certificate.

Martin v. Adams, 73 Hun, 122; 57 St. Rep. 133; 25 Supp. 1020.

Pending an appeal to the court of appeals it is within the discretion of the special term to permit the printed case to be amended by the insertion of a certificate that it contains all the evidence.

Barnard v.

Gantz, 69 Hun, 104; 52 St. Rep. 604; 23 Supp. 260. When it is conceded that the printed case on appeal does in fact contain all the evidence, the appellant should as a matter of favor be allowed to amend by inserting the certificate.

Martin v. Baust, 23 App. Div. 234; 82 St. Rep. 989; 48 Supp. 989.

The criticism of the report of this case by Gaynor, J., in the case in the text is well founded. Inquiry of counsel discloses that it was an appeal from a judgment on a decision of the court and a certificate was there fore necessary.

Tyler v. Ballard.

TYLER v. BALLARD.

[31 Misc. 540; 99 St. Rep. 557; 65 Supp. 557.]

(Supreme Court, Special Term, Broome County. May 1900.)

PENSIONER-PROPERTY PUR

EXEMPTIONS-PENSION MONEY-DEATH OF

CHASED WITH PENSION MONEY-JUDGMENT-LIEN.

Under Code Civ. Pro. § 1393, which exempts a pension from execution, except that real property, purchased therewith shall be subject to seizure for taxes, a house and lot purchased in 1891 by decedent with pension money, and held by her until her death, in 1895, is not subject to execution after her decease to satisfy a judgment obtained against her in 1889, since the exemption of property purchased with pension money is absolute, and the judgment constituted no lien on such property.

NOTE.-EXEMPTION OF PENSION MONEYS AFTER DEATH OF PENSIONER.

The statute upon the exemption of pensions from liability for the pensioner's debts is section 1393 of the Code of Civil Procedure which is as follows:

"The pay and bounty of a non-commissioned officer, musician or private in the military or naval service of the United States or the State of New York; a land warrant, pension or other reward heretofore or hereafter granted by the United States, or by a state, for military or naval services; a sword, horse, medal, emblem or devise of any kind presented as a testimonial for services rendered in the military or naval service of the United States or a state; and the uniforms, arms and equipments which were used by a person in that service, are also exempt from levy and sale, by virtue of an execution, and from seizure for nonpayment of taxes, or in any other legal proceeding; except that real property purchased with the proceeds of a pension granted by the United States for military or naval service, and owned by the pensioner, or his wife or widow, is subject to seizure and sale for the collection of taxes or assessments lawfully levied thereon."

The exemption is not an incident of the thing exempted but is a privilege personal to an individual or individuals, which does not pass to their descendants.

Matter of Winans, 5 Dem. 138.

The exemption given by § 1393 of the Code of Civil Procedure terminates with the death of the pensioner and the pension moneys or property purVII. N. Y. A. C. 30

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