Fred Opperman, Jr., Brewing Co. v. Pearson — 73 N.Y.S. 541

Majority

p. 541

(67 App. Div. 98.)

FRED OPPERMAN, JR., BREWING CO. v. PEARSON.

(Supreme Court, Appellate Division, First Department.

December 20, 1901.)

Headnote

Appeal—Sufficiency of Record.

The proposed case, on an appeal from the decision of a referee on issues of fact, must contain a statement that all the evidence is incorporated therein, and it is not sufficient to insert such statement in the preliminary statement prefixed to the case, showing the time of beginning the action, etc.

Appeal from judgment on report of referee.'

Action by the Fred Opperman, Jr., Brewing Company against • Annie Pearson, as administratrix of Samuel W. Pearson, deceased. Judgment for plaintiff on a referee’s report, and defendant appeals.

Amendment of record ordered.

Argued before VAN BRUNT, P. J., and McRAUGHRIN, PATTERSON, O’BRIEN, and LAUGHLIN, JJ.

E. H. Pomeroy, for appellant.

A. P. Fitch, for respondent.

The appeal in this case brings up for consideration the decision of a referee upon issues of fact, but the record is not in proper condition to enable us to review that decision. There is no statement in the case that it contains all the evidence adduced at the trial. Such a statement is required and should be contained in a proposed case, in order that the respondent may be notified that questions of fact are to be brought up for.review as well as questions of law. It forms part of the case, and it is not sufficient for a party printing a record to insert it in the preliminary statement to be prefixed to the case showing the time of the beginning of the action or special proceeding, the service of the respective pleadings, and the names of the original parties in full, and any change in the parties, as required by rule 41 of the general rules of practice. Although the present record is defective, it is apparent that matters of fact are to be considered principally on the appeal, and under the special circumstances of the case the appellant should be allowed to take proper proceedings to amend the case. For this purpose the papers may be withdrawn and corrected, after which the appeal may be again brought on by service of a new notice of argument and the filing of the amended record with the clerk of this court. All concur. ,