Mullinhoff v. Scherer — 17 N.Y. St. Rep. 387

Majority

p. 387

William Mullinhoff, Resp’t, v. Michael Scherer, App’lt.

(Superior Court of Buffalo, General Term,

Filed June 29, 1888.)

Headnote

1. Practice—Appeal prom motion denying a new trial upon the judge’s minutes—What case must show.

When a verdict is sought to be set aside as being against the weight of evidence after a motion has been made for a new trial upon the minutes, it

p. 388

is essential that the case upon appeal states that it contains all the evidence given upon the trial; otherwise the court will assume that there was evidence sufficient to warrant the verdict rendered.

3. Same — Appeal prom decision op court or referee—Review of findings—What case must contain.

When it is sought, upon an appeal from the decision of a court or referee, to raise the question that a finding is against the weight of evidence, the case must show that it contains all of the evidence hearing upon the question of fact sought to he reviewed. If the case does not show this, it will he assumed that there was sufficient evidence to sustain the finding.

Appeal from a judgment and order denying a motion for a new trial made upon the minutes of the judge.

William B. Hoyt, for app’lt. F. R. March, for resp’t.

The supreme court has decided that when a verdict is sought to be set aside as being against the weight of evidence, after a motion has been made for a new trial upon the minutes, it is essential that the case upon appeal state that it contains all the evidence given upon the trial, otherwise the court will assume that there was evidence sufficient to warrant the verdict rendered. Cheney v. N. Y. C. and H. R. R. R. Co., 16 Hun, 415 -419.

The same rule is applied to .a case upon appeal from the decision of a court or referee; then if the appellant intends raising on appeal the question that a finding is against the weight of evidence, the case must show that it contains all of the evidence bearing upon the question of fact sought to be reviewed. Porter v. Smith, 35 Hun, 118 ; Spence v. Chambers, 39 id., 193 .

The case, upon this appeal, does not state that it contains all the evidence given upon the trial. We must therefore assume that there was sufficient evidence to sustain the verdict given. We have, however, examined the evidence appearing upon the record. It appears that the testimony was conflicting, no motion for a nonsuit or request to direct a verdict in favor of defendant was made, and no exception was taken to the charge of the court. The case was fairly submitted, and if we were at liberty to pass upon the question sought to be raised, we are not prepared to say that we should reach a different conclusion than that arrived at by the trial court.

The judgment and order appealed from is therefore affirmed, with costs.

Beckwith, Ch. J., concurs; Titus, J., not sitting.