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Murray v. Babbitt

10 Misc. 365 Court General Term, English

Delivered by Pryor, J.

Contents

Majority

p. 365
William Murray, Appellant, v. Rebecca Babbitt, Respondent. William Murray, Appellant, v. The Gast Lithograph & Engraving Co., Respondent.
(New York Common Pleas
General Term,
December, 1894.)

Headnote

In an equity action the trial court filed five conclusions'of law, of which one at least was correct. Held, that an exception “to each and all’ was ineffectual to challenge the validity of any.
Appeals from judgments dismissing the complaints in each action.
The cases are identical, and the facts essential to the decision appear in the opinion.
Benjamin B. Foster, for appellant.
William B. Fllison, for'respondents.

Upon the trial by the court of actions in equity for injunctive relief and damages, the decision was for the defendants, and findings of fact and conclusions of law were duly filed pursuant to the then prevalent- practice. To the findings of fact no exception was taken, nor was any request made for other or different findings. But, to the conclusions of law, in both cases, the appellant filed an exception as follows: “ The plaintiff excepts to each and all of the conclusions of law filed herein.” The conclusions of law against which the exception is so directed were five in number, and they involved more than a single proposition.

The question is, does such an exception present any point for review? We are constrained by imperative authority to hold the exception ineffectual to raise any question of error for revision.

As the case does not purport to contain all the evidence, the findings of fact are not for review. Porter v. Smith, 107 N. Y. 531 . Indeed, it is apparent beyond doubt that the appellant challenges only the conclusions of law. Moores v.

p. 366
Townshend, 102 N. Y. 387 . Still, to present the point of error in legal conclusions, due exception must be entered of record (Roberts v. Tobias, 120 N. Y. 1 ; Thompson v. Hazard, 120 id. 634) ; and that the exception in question is nugatory is not a disputable proposition. In Ward v. Craig, 87 N. Y. 551 , 553, the exception was “ to the conclusions of law, and to each and every thereof; ” held, insufficient and of no avail. In Riley v. Sexton, 32 Hun, 245 , an exception “ to each of the findings of law” was adjudged of no effect. Wheeler v. Billings, 38 N. Y. 263 ; Newell v. Doty, 33 id. 83 ; Thompson v. Hazard, 120 id. 634 ; Bosley v. N. M. Co., 123 id. 550, 558 ; Moyer v. R. R. Co., 88 id. 351, 355 ; Turner v. Weston, 133 id. 650 ; Huerzeler v. R. R. Co., 139 id. 490, 493.

Supposing the exceptions before us effectual, if all the conclusions against which it is levelled be erroneous (Riley v. Sexton, supra), still the validity of the thi/rd, namely, that an unconditional gift passes the property, is obviously unquestionable.

The rule is too familiar to require or to justify citation of authority in its support, that an exception to a group of propositions is untenable if any one be correct.

The conclusion is that we are precluded from review of the very interesting questions which the learned counsel for the appellant submits to our consideration.

Judgments affirmed, with costs.

Daly, Oh. u., and Bookstaver, J., concur.

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