Martin, Bing & Co. v. Baust — 23 A.D. 234

Majority

p. 234

Martin, Bing & Co., Respondent, v. Louis Baust, Appellant, Impleaded with Others.

Headnote

Proposed case on appeal — absence of any statement that it contains, all the evidence —presumption therefrom—amendment allowed.

Unless the appellant inserts in a proposed case a statement that it contains all the evidence, the respondent may assume that only questions "of law are to he raised on the appeal.

Where, however, it is conceded that the case does contain all the evidence the appellant should, as a favor, be allowed on terms to amend it by inserting a statement to that effect.

Appeal by the • defendant, Louis Baust, from an order of the Oounty Court of Westchester county, entered in the office of the clerk of the county of Westchester on the 20th day of November, 1897, denying his motion to am.end the printed case on appeal.

p. 235

Richard T. Greene, for the appellant.

Henry C. Griffin, for the respondent.

The respondent is doubtless correct in his contention that the plaintiff should have inserted in his proposed. case the statement that it contained all the evidence, if he wished that fact to appear in the record, because it is such a statement alone that gives the respondent information that questions of fact are to be reviewed on-appeal, and puts him on his guard to see that all the requisite testimony is inserted. . Otherwise he may assume that only questions of law are to be raised and the record need only contain sufficient evidence to support the rulings of the court below. But in this case the respondent concedes that, in fact, the case does contain all the evidence, and, therefore, we think that, as matter of favor, the appellant ought to have been given the privilege of amending his proposed case so as to contain such a statement.

The order appealed from should be reversed and motion granted" on payment by appellant of ten dollars costs, and inserting the exhibits to be designated by the respondents.

All concurred.

Order reversed and application granted on payment by appellant of ten dollars costs and disbursements, and inserting the exhibits-to be designated by the respondents.