Price v. Levy — 26 A.D. 620

Majority

p. 620

Moses Price, Respondent, v. Jacob Levy and Others, Appellants.

Headnote

Appeal — to authorize a review of a decision made under Oode Civ. Proe. § 1033, an exception must be filed.

Unless an exception is filed to a decision, made under section 1033 óf the Oode of -, Civil Procedure, the Appellate Division cannot, on an appeal from the j udgment entered on such decision, review ahy question of fact.

■ Appeal by the defendants,,-Jacob Levy and others, from a judgment of the Supreme Court in favor of the plaintiff,, entered in the

p. 621

office of the clerk of the county of Yew York on the 9th day of June, 1897, upon the decision of the court rendered after a trial at the Yew York Special Term setting aside a judgment entered upon a confession and all proceedings taken thereunder, upon the ground that the confession was made, judgment entered and proceedings taken with intent to hinder, delay and defraud creditors.

Max D. Steuer, for the appellants.

William A. Goodhart, for the respondent.

Note.—The rest of the cases of this term, will he found in the next volume, 27 App. Div.— [Rep.

The appellants did not observe or file an exception to the decision of the Special Term upon which the judgment appealed from was entered, and they are, therefore, not in a position to challenge the conclusion reached by that court. (Millar v. Larmer, 85 Hun, 313 .) Where a decision is made under section 1022 of the Code of Civil Procedure, an exception to the decision is necessary to present anything for review. Yo exception having been taken to the decision, 'there is nothing for the appellate court to review, and the judgment entered upon it must be affirmed. (Smith v. Moulson, 88 Hun, 147 .)

It follows that the judgment must be affirmed, with costs and disbursements.

Present — Van Brunt, P. J., Patterson, O’Brien, Ingraham and McLaughlin, JJ.

Judgment affirmed, with costs.