Young v. Young — 28 Abb. N. Cas. 285

Majority

p. 285

YOUNG v. YOUNG.

N. Y. Court of Appeals;

May, 1892.

Headnote

[Rev’g 18 N. Y. Supp. 116 .]

1. Case ; exceptions.] Requests and refusals to find on a trial without jury, (or exceptions duly taken to such refusals, even though not taken till after judgment^[1] ) are to be inserted in a case

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made for the purpose of appeal, and it is error to strike them out on the ground that they form no proper part of the “ case.”

•2. The satne.'] A successful party seeking to strike out his adversary’s exceptions from the case on appeal, on the ground that they were not duly filed, must show affirmatively that they were not. It is not enough that his adversary’s papers do not show that they were.

Appeal from an order of the General Term N. Y, Common Pleas affirming an order of the Special Term of that court denying a motion to resettle the-case.

The action was brought by John W. Young against Sophia Young. It was tried by the court»without a jury, and the defendant obtained judgment. Plaintiff appealed.

The requests of the parties found by the court were.

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inserted in the decision. The appellant included in his proposed case certain of his requests for findings and conclusions, which had been refused, and his exceptions to their refusal. On settlement of the case the judge struck out such requests and exceptions stating in writing as his reason, that “ the plaintiff’s requests, while a part of the record upon which the appeal may be heard, form no part of the proposed case and should not appear therein.” Appellant moved to resettle the case in order to .have the part which had been so stricken out restored.

. The Special Term denied the motion for resettlement without opinion.

The General Term affirmed the order denying the motion on the ground that it appeared from the affidavit in support of the motion that the appellant had only •served his exceptions to the decision upon his adversary, and that it was not shown that such exceptions had been •also filed with the clerk, or that the requirements of Code Civ. Pro. § 994, had been otherwise complied with .[Reported as 18 N. Y. Supp. 116 ].

Bullard & Shannon, for appellant.

Robert E. Deyo (Deyo, Duer & Bauerdorf, attorneys), for respondent.

The plaintiff’s exceptions, if duly taken under section 994 of the Code, were properly inserted in the case (Code, § 997; French v. Powers, 80 N. Y. 146 ). It does not appear that they were not properly taken in the manner and within the time prescribed in section 994. They were directed to be stricken out of the case on the settlement, on the ground that exceptions so taken are not to be inserted in the case, but are brought up in connection with the judgment roll. In

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this we think the judge erred. Section 997 seems to be decisive that such exceptions may be inserted in the case.

The general term affirmed the order, on the ground that only exceptions properly taken co.uld be incorporated into the case, and that the exceptions inserted by the plaintiff had not been taken in time. This does not appear. " -

We think there is no doubt that the plaintiff, in order to make his exceptions valid, must have conformed to the'provisions of section 994, and that, if the exceptions-were not taken in the manner there provided, they are-not valid. If the plaintiff, by mistake or inadvertence, has not conformed his practice to that section, his exceptions will fail, unless he is relieved under section 724 or in some other way.

As it stands, the plaintiff is entitled to a reversal of the order, since the ground upon which the general term proceeded is not supported by any facts appearing in the-papers.

All the judges concurred.

Orders- of special and general terms reversed, and. motion to re-settle the case granted, with costs.

Cases cited

French v. Powers 80 N. Y. 146 N.Y. 1880-02-24 p. 287