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Murphy v. Board of Education

6 N.Y.S. 99 Court N.Y. Gen. Term Decision date 1889-07-02 English

Delivered by Pratt, J.

Contents

Majority

p. 99
Murphy v. Board of Education of Yonkers.
(Supreme Court, General Term, Second Department.
July 2, 1889.)

Headnote

Appeal—Practice—Case—Statement of Evidence.
Findings of fact will not be reviewed on appeal, unless it is stated in the case that all the evidence on which the findings depend is returned.
Appeal from circuit court, Westchester county.
Action by Denis Murphy against the board of education in the city of Yonkers for a balance alleged to be due on a building contract. Judgment was entered on a verdict for defendant, and plaintiff appeals.
Argued before Barnard, P. J., and Pratt, J.
John F. Brennan, for appellant. Smith c6 Dougherty, for respondent.

The testimony is conflicting, and the trial judge is much better fitted to determine what weight to give the different statements than a tribunal that has not seen the witnesses possibly can be. It must also be remarked that the case does not show that all the testimony given below has been put before this court. For chat reason we cannot review the facts. It is the duty of an appellant who intends to call the conclusions of fact in question to put in the case a statement that all the evidence is returned upon which those facts depend. If the case contains no such statement, it is equal to saying to the respondent that only questions of law are to be taken upon appeal. See Howland v. Howland, 20 Hun, 472 ; Spence v. Chambers, 39 Hun, 193 ; Porter v. Smith, 107 N. Y. 531 , 14 N. E. Rep. 446 . This rule is so well established that a respondent may properly rely upon it, and, after a case has been made in a manner appropriate only for the review of questions of law, to reverse a judgment upon the facts would be an injustice to the respondent, who has a right to rely upon the court’s enforcing the rules it has announced for the guidance of litigants. We have examined the exceptions, and find none that require the judgment to be interfered with. It must therefore be affirmed, with costs.

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