Hermann v. Van Buren — 31 N.Y.S. 825

Majority

p. 825

(10 Misc. Rep. 753.)

HERMANN v. VAN BUREN.

(Common Pleas of New York City and County, General Term.

January 7, 1895.)

Headnote

Appeal—Matters not Apparent on Record.

The ruling of the trial court admitting a certain paper in evidence will-not be reviewed where it is not included in the return.

Appeal from First district court.

Action by Theodore L. Hermann against Thomas B. Van Burén.. There was a judgment in favor of plaintiff, and defendant appeals..

Affirmed.

Argued before BOOKSTAVER and BISCHOFF, JJ.

Albert Day, for appellant.

Guggenheimer, Untermyer & Marshall, for respondent.

A certain paper was admitted in evidence against the objection and exception of the defendant (appellant), but is not included in the justice’s return. A motion by the appellant for leave to amend the return by supplying this paper has been denied because not made until after this court had intimated, upon the argument, its-decision upon the questions presented by the return as filed. Warren v. Campbell (Com. Pl. N. Y.) 14 N. Y. Supp. 165 . The exception is-therefore ineffectual, as, in the absence of the paper, it cannot be determined that it was improperly admitted. The appellant has consequently failed to show error of law, and only a question of fact remains to be passed upon; and, after a review of the evidence, we are confirmed in our opinion, formed and intimated upon the argument, that the facts would not warrant a reversal of the justice’s decision. Judgment affirmed, with costs,.