Fred Oppermann, Jr., Brewing Co. v. Pearson

Majority

p. 98

The Fred Oppermann, Jr., Brewing Company, Respondent, v. Annie Pearson, as Administratrix, etc., of Samuel W. Pearson, Deceased, Appellant.

Headnote

Appeal — a statement that a ease contains all the evidence must be contained, in the ease, not in the preliminary statement required by rule 41.

The statement that a case on appeal from a judgment entered upon the report of a referee contains all the evidence adduced at the trial which is essential to a review of the judgment upon the facts must form part of the case, and it is not sufficient for the appellant to insert it in the preliminary statement required to be prefixed to the case by rule 41 of the General Rules of Practice.

Appeal by the defendant, Annie Pearson, as administratrix, etc., of Samuel W. Pearson, deceased, - from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of August, 1901, upon the report of a referee.

Eugene H. Pomeroy, for the appellant.

Ashbel P. Fitch, for the respondent.

The appeal in this case brings up for consideration the decision of a referee upon issues of fact, but the record is not in proper com dition to enable us to review that decision. There is no statement in the case that it contains all the evidence adduced at the trial. Such a statement is required and should be contained in a proposed case, in order that the respondent may be notified that questions of fact are to be brought up for review as well as questions of law., It forms part of the case, and it is not sufficient for a party printing a record to insert it in the preliminary statement to be prefixed to the case showing the time of the beginning of the action or special proceeding, the service of the respective pleadings and the names of the original parties in full, and any change in the partiés, as required by-rule 41 of 'the General Rules of Practice. Although the present record is defective, it is apparent that matters of fact are to be considered principally on the appeal, and under the special circum

p. 99

stances of the case the appellant should be allowed to take proper proceedings to amend the case. For this purpose the papers may be withdrawn and corrected, after which the appeal may be again brought on by service of a new notice of argument and the filing of the amended record with the clerk of this court.

Yah Brunt, P. J., O’Brien, McLaughlin and Laughlin, JJ., concurred.

Case sent back for correction.