Krekeler v. Thaule

Headnote

A party who appeals to this court from an order granting anew trial takes the risk of any exception contained in the case which might have been made a ground of reversal, whether it was in fact so made or not.

This was an appeal from an order of General Term, reversing a judgment in favor of defendants, entered upon a decision of the court, and granting a new trial.

The principal grounds for reversal, as appeared by the opinion below, were based upon facts not found by the court. Held, that as it did not appear in the order of reversal that it was upon the facts, it must be deemed under the Code (§ 272) to have been upon the law only, and the only question to be considered here was whether the record discloses any error of law justifying the reversal: that this court could only look at the facts as found and the exceptions taken (Foster v. Persch, 68 N. Y., 400 ) ; that the facts stated in the opinion of the General Term, but not found, could not be resorted to to sustain a reversal upon the law, the only findings of fact that could be looked to being those contained in the decision of the trial court, and that these disclosed no error in the conclusions of law of that court.

The order, however, was sustained upon the ground that the case disclosed some erroneous rulings as to the reception of evidence, which were duly excepted to and which might have been grounds for reversal. The court reiterating the rule as above.