Averill v. Hurd — 17 N.Y. St. Rep. 675

Majority

p. 675

James Averill et al., Resp’ts, v. John Hurd et al., App’lts.

(Supreme Court, General Term, Third Department,

Filed July 3, 1888.)

Headnote

Appeal—Practice—Appellate court not called upon to review pacts UNLESS CASE CONTAINS ALL THE EVIDENCE—CODE GlV. PRO., § 992.

Under Code Civ. Pro., § 992, the general term are not called upon tO' review questions of fact, unless the case shows that it contains all the evidence given on the trial. Following Porter v. Smith, 107 N. Y., 531 ; 12 N. Y. State Rep., 479.

Appeal from a judgment in favor of the plaintiff entered in Clinton county clerk’s office upon the report of a referee. The action was brought to recover the price of two circular mills alleged to have been sold by the plaintiffs to the defendants.

L. B. Bunnell, for app’lts ; S. Alonzo Kellogg, for resp’ts.

The first point made by defendants is, that the judgment should be reversed because it is mani

p. 676

festly unjust. This probably means that the referee’s report is contrary to the evidence. The case does not show that it contains all the evidence, or all the evidence bearing on the questions of fact. Since the decision in Porter v. Smith ( 35 Hun, 118 ) ; affirmed 107 N. Y., 531 ; 12 N. Y. State Rep., 479, we must consider it settled that, by the practice under the present Code, § 992, we are not called upon to review questions of fact, unless the case shows that it contains all the evidence given on the trial. Whether in this case we have before us all the material evidence does not appear; and yet we are asked by tho defendants to review'the testimony and reverse on the facts. We think it is best to adhere to the rule above stated, which has the sanction of the court of appeals.

It is evidently right that when a review of the testimony and a reversal on the facts is asked, thé appellate court should have before it all the material testimony on which the case was decided. In Perkins v. Hill ( 56 N. Y., 87 ) the court of appeals held that the general term should assume that the case contained all the material evidence. But that doctrine is overruled in Porter v. Smith (ut supra), and the contrary is established, on the ground that section 992 of the present Code has changed the situation.

The only exceptions in this case are to the admission of certain letters between the parties, and the ground stated is that they were immaterial. It is not suggested that they were not proved, or that they had not been sent and , received. They are letters respecting the matters in controversy. Some are letters written by defendant. Some are plaintiffs’ letters with the defendants’ replies thereto. No reason is given why they should have been excluded, except that they were immaterial. They are generally requests by plaintiffs for payment and reasons assigned by defendants for non-payment.

We see nothing improper in their admission; and, indeed, the defendants’ objection in their points is so general that we think they cannot have relied much thereon. Evidently, the defendants’ principal reliance was on a review of the whole testimony and a reversal on the facts. As to this we have already stated the difficulty.

Judgment affirmed, with costs.

Landon and Ingalls, JJ., concur.