Martin v. Baust — 48 N.Y.S. 989

Majority

p. 989

MARTIN et al. v. BAUST et al.

(Supreme Court, Appellate Division, Second Department.

December 31, 1897.)

Headnote

Appeal—Amendment of Statement.

Where, upon the motion of a party who has taken an appeal to amend his printed case on appeal by inserting a statement that it contains all the evidence, the respondent concedes that in fact the case does contain all the evidence, the privilege of amending the proposed case so as to contain the statement should be granted as matter of favor.

Appeal from Westchester county court.

Action by Martin, Bing & Co. against Louis Baust and others. From an order denying a motion to amend the printed case on appeal, Baust appeals.

Reversed.

Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and BRADLEY, JJ.

Richard T. Greene, for appellant.

Henry O. Griffin, for respondents.

The respondent was doubtless correct in his contention that the plaintiff should have inserted in his proposed case the statement that it contained all the evidence, if he wished that fact to appear in the record, because it is such a statement alone that gives the respondent information that questions of fact are to be reviewed on appeal, and puts him on his guard to see that all the requisite testimony is inserted. Otherwise he may assume that only questions of law are to be raised, and the record need only contain sufficient evidence to support the rulings of the court below. But in this ease the respondent concedes that in fact the case does contain all the evidence; and therefore we think that, as matter of favor, the appellant ought to have been given the privilege of amending his proposed case so as to contain such a statement.

The order appealed from should be reversed, and the motion granted, on payment by appellant of $10 costs, and inserting the exhibits to be designated by the respondent.