Hunt v. Webber — 48 N.Y.S. 24

Majority

p. 24

HUNT v. WEBBER et al.

(Supreme Court, Appellate Division, Second Department.

November 30, 1897.)

Headnote

Appeal—Review—Evidence not in Rbcobd.

In the absence from a case on appeal of the required statement that it contains all the evidence, the appellate court can neither grant a new trial, nor reduce the amount of the recovery in the court below.

Appeal from trial term.

Action by Clara Hunt against John Wesley Webber and Charles GL Webber as executors, etc. From a judgment on a verdict, and an order denying a motion for a new trial, defendants appeal.

Affirmed.

John Baptist Marshall, for appellants.

Frederick E. Crane, for respondent.

The recovery in this case is very large, and we are impressed, after a careful reading of the testimony returned, that the services claimed to have been rendered are exaggerated in character and in value. There is no proof of the expenditure of the sum of $420 by the plaintiff for the benefit of the deceased, disclosed in the record. The amount of such expenditure in the complaint is made by the plaintiff upon information and belief. If she expended this sum, it would seem to be within her personal knowledge, and therefore admitted of a positive allegation. However this may be, the averment is not denied in the answer, and such expenditure is not now controverted. It is not claimed that the case presents any valid exception which requires a reversal of the judgment, and it is difficult to see from the proof htiw the court can legally interfere, either by the granting of a new trial, or reducing the amount of the recovery. If, however, we could find ground for such action, the appellants have rendered such course impossible, by failing to have inserted a statement that the case contains all the evidence. We must therefore conclude that evidence was given sufficient to support the judgment which has been rendered.

The judgment should be affirmed, with costs.