Hyperlawhypertext legal database Empire Trust Co. v. Devlin 90 N.Y.S. 1066

← Cases

Empire Trust Co. v. Devlin

90 N.Y.S. 1066 Court N.Y. App. Term Decision date 1904-12-07 English

Delivered by FREEDMAN, P. J.

Contents

Majority

p. 1066
(45 Misc. 583)
EMPIRE TRUST CO. v. DEVLIN.
(Supreme Court, Appellate Term.
December 7, 1904.)

Headnote

1. Appeal—Review of Evidence—Cebtificate as to Evidence.
Where a case on appeal from the City Court does not affirmatively show by way of certificate or stipulation that it contains all the evidence adduced at the trial, the Appellate Term' will not inquire whether the verdict is contrary to the evidence or against the weight of the evidence.
Appeal from City Court of New York, Special Term.
Action by the Empire Trust Company against James Devlin. From an order of the City Court denying a motion to set aside a verdict for defendant and for a new trial, plaintiff appeals.
Affirmed.
Argued before FREEDMAN, P. J., and BISCPIOFF and GILDERSLEEVE, JJ.
Wm. H. Leonard Edwards, for appellant.
J. J. ICarbry O’Kennedy, for respondent.

As the case on appeal does not, by way of ^ a certificate or stipulation, affirmatively show that it contains all the evidence adduced at the trial, this court will not inquire whether the verdict is contrary to the evidence or against the weight of evidence. For the necessity of such a certificate or stipulation to enable the appellate court to weigh the facts, see Caven v. City of Troy, 15 App. Div. 163 , 44 N. Y. Supp. 244 ; Brooker v, Filkins, 9 Misc. Rep. 146 , 29 N. Y. Supp. 68 ; Jeffers v. Bantley, 47 Hun, 90 ; Revelski v. Droesch, 6 App. Div. 190 , 39 N. Y. Supp. 1008 ; and a large number of other cases collected under rule 32 of the general rules of practice in the annotated edition of said rules. The case of Rosenstein v. Fox, 150 N. Y. 354 , 44 N.

p. 1067
other cases cited by the appellant, do not hold the contrary. They are simply to the effect that, in the absence of such a certificate or stipulation, the right to a review of the exceptions still remains.

We have examined the exceptions appearing in the record and taken by the appellant, and find that none of them presents reversible error. The plaintiff was not, as matter of law, entitled to the direction of a verdict in its favor. There was sufficient evidence to require the submission of the case to the jury, and it was submitted to them under a .charge to which no exception was taken.

The order should be affirmed, with costs and disbursements. All concur.

Cases cited