Smith v. Starr — 70 N.Y. 155

Majority

p. 155

Isaac Spencer Smith, Executor, etc., Appellant, v. Frederick W. Starr, Respondent.

(Argued June 1, 1877;

decided June 12, 1877.)

Headnote

Where the record on appeal from a judgment contains no case or exceptions, and no evidence that a trial was had save an order reciting that the action was brought to trial at Special Term, and a motion made to dismiss the complaint, and directing that the same be dismissed, such record presents nothing for review; an appeal from the order dismissing the complaint does not bring up for review the proceedings on the trial.

Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, affirming a judgment in favor of defendant entered upon an order dismissing plaintiff’s complaint. (Reported below, 4 Hun, 123 .)

The record contained no case or exceptions, but simply the judgment roll with notice of appeal to this court and copies of opinions. The judgment roll was composed of the

p. 156

pleadings, an order purporting to be of the Special Term which recited that the action had been brought to trial before the court without a jury, that a motion was made on the part of defendant to dismiss the complaint, and thereupon ordering that the complaint be dismissed with costs, unless the plaintiff moves within ten days from service of copy of order to amend his complaint; a notice of appeal from the order to the General Term, an order of affirmance by the General Term, a judgment for costs entered upon said order, and the order dismissing the complaint, a notice of appeal from the judgment, an order of General Term affirming the judgment, and a judgment for costs entered thereon.

Charles II. Smith, for the appellant.

Rob’t Johnstone, for the respondent.

The record in this case presents nothing for review. No case is made out, or appears to have been settled, or a single excejition to have been taken. The only evidence that a trial has taken place is an order purporting to have been made at Special Term, which recites that the action has been brought to trial, etc., and a motion made to dismiss the complaint, and directs that the same be dismissed with costs, unless the plaintiff moves to amend his complaint within ten days from the date of the service of a copy of the order.

There is also a notice of appeal from the order to the General Term, of a subsequent date, and a statement that a judgment was entered for a failure to comply with the terms of the order for costs, and after this a notice of appeal from judgment to the General Term.

The appeal from the order does not bring up for review the proceedings upon a trial, and, as there.are no exceptions, the appeal from the judgment presents no question for consideration. Where there is no case' made or settled, showing that any question was raised, or any exceptions taken, and no

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report of a referee, or findings of the court, with exceptions, this court has no jurisdiction and no appeal lies. (Doty v. Carolus, 31 N. Y., 547 ; Weed v. N. Y. & H. R. R. Co., 29 id., 616 .)

The appeal must be dismissed, with costs.

All concur.

Appeal dismissed.