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Levi v. Newhall

9 N.Y.S. 423 Court N.Y. Super. Ct. Decision date 1890-03-04 English

Delivered by Truax, J.

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p. 423
Levi et al. v. Newhall et al.
(Superior Court of New York City, General Term.
March 4, 1890.)

Headnote

Appeal—From Decision of Referee—Review of Facts.
On an appeal to the general term from the judgment entered on the report of a referee, in order to present the questions that the findings of fact are against the weight of the evidence, there must be a certificate of the referee that all of the evidence is in the case, or it will be assumed that there was sufficient evidence to support the findings.
Appeal from judgment on report of referee.
Action by Joseph Levi and Henlein Levi against Edward S. Yewhall and William S. Yewhall to recover the cost price of merchandise alleged to have been delivered to defendants for sale under an agreement limiting them in their disposition to a sum not less than the cost price. The answer was a denial of the material allegations in the complaint. A reference was had, and defendants appeal from the judgment in favor of plaintiffs founded upon the report of the referee.
Argued before Truax and Duoro, JJ.
Geo. P. Webster and Allan McDonald, for appellants. Simpson & Werner, for respondents.

On an appeal from a judgment entered on the report of a referee, the court at general term will review all errors of law that are presented by the exceptions, and will consider, without an exception, whether the findings of fact are against the weight of evidence; but, in order to do that, the case must show that it contains all of the evidence. An exception to a finding of fact presents nothing for this court to review, unless there be no evidence to sustain such finding of fact, in which event it presents a question of law. In order to present the question to the general term that the findings of fact are against the weight of evidence, there must be a certificate of the referee that all of the evidence is in the case. Without such certificate, the general term will assume that the evidence was sufficient to support the finding offact. Spence v. Chambers, 39 Hun, 193 ; Porter v. Smith, 7 Civil Proc. R. 195; Harkness v. Railroad Co., 55 N. Y. Super. Ct. 532 . Yone of the rulings made by the referee on the admission or rejection of evidence were erroneous. We are also of the opinion that the findings of fact are not so clearly against the weight of evidence that we would be authorized in reversing the judgment, even if the case fairly presented the question of the weight of evidence to us. Judgment affirmed, with costs and disbursements.

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