Altmayer v. Metropolitan Elevated Railway Co.

Majority

p. 311

Altmayer v. Metropolitan El. Ry. Co. et al.

(Superior Court of New York City, General Term.

May 4, 1891.)

Headnote

When Appeal Lies—Omission of Findings.

The court cannot reverse a judgment of the court below upon the ground that-certain findings and conclusions of law were omitted from the decision of the judge, the remedy of the party aggrieved in such case being by motion to supply the omission in the court below.

p. 312

Appeal from special term.

Action by Aaron Altmayer against the Metropolitan Elevated Railway Company and another. Defendants appeal from a judgment entered on findings and conclusions made at special term.

Argued before Sedgwick, C. J., and McAdam, J.

Julien T. Davies and I. C. Thomson, for appellant. Charles Gibson Bennett, for respondents.

It is objected as a sufficient cause for reversal that certain findings and conclusions of law, found at the request of the defendants, were ■omitted from the decision made by the judge. In such a condition of the case ■there is no subject-matter of an appeal. There is no action of the court which may be reviewed. If the omission were irregular, the defendants might have made a motion for the correction of the omission, and they would have a right to appeal from a denial of the motion. In the absence of such a motion and ■order, the omission appears to be without objection on the part of the defendants, and that evinces a consent that the ease proceed and appeal be heard on the decision as made. The other objections have been decided unfavorably to the defendants by other cases. Judgment affirmed, with costs.