Seligman v. Hahn — 23 N.Y.S. 969

Majority

p. 969

SELIGMAN v. HAHN.

(City Court of New York,

General Term.

June 19, 1893.)

Headnote

Appeal—Record—Entire Evidence.

Questions of fact will not be reviewed in the absence of a certificate that all evidence is in the record.

Appeal from trial term.

Action by David Seligman against Isaac Hahn. Judgment for plaintiff. Defendant appeals.

Affirmed.

Argued before VAN WYCK and FITZSIMONS, JJ:

H. M. Whitehead, for appellant.

Epstein Bros., for respondent.

The appeal record does not contain the usual certificate, stating that it contains all the evidence given upon the trial. We must therefore decline to review questions of fact. We find no errors of law, and judgment must be affirmed, with costs.

(concurring.) Under the contract set forth in the second paragraph of the complaint, and not denied by the answer, the plaintiff was not bound to first pursue the principal debtors to judgment and execution as a condition precedent to his cause

Concurrence

p. 970

of action against defendant. Moreover, if he was, the evidence at folio 21 was sufficient to permit of a finding by the jury that the defendant had waived the condition as to certain of the debtors whose debts aggregated $315.50, and it would seem that the jury had so found by returning a verdict for only $157.75,—just one-half of such debts,—as the plaintiff sought by pleading and evidence to hold defendant hable for one-half of all of certain uncollectible debts, aggregating $480. This verdict cannot be reviewed here as regards the weight of evidence, because there is no certificate that the case on appeal contains all the evidence.

The judgment and order should be affirmed, with costs.