Mooney v. Fagan — 21 N.Y. St. Rep. 883

Majority

p. 883

Christopher Mooney, Resp’t, v. Charles J. Fagan, App’lt.

(Supreme Court, General Term, First Department,

Filed January 28, 1889.)

Headnote

1. Practice—Exception to findings of fact—Code Civ. Pro., § 993.

An. exception cannot tie taken to a finding, of fact.

3. Same—Exception to refusal to find.

An exception to a refusal to find is not available when the appeal hook does not disclose that such refusal was made.

p. 884

3. Judgment—Reversal of.

The rejection, of a defense by a trial judge upon conflicting proofs affords no better reason for reversing a judgment than would exist if the' action had been tried before a jury.

Appeal from judgment entered upon the decision of the court at circuit, after a trial without a jury.

Samuel Oreenbaum, for app’lt; L. H. Andrews, for xesp’t.

The sole ground upon which the defendant asks us to reverse the judgment in this case is that the trial court erred in deciding the issues of fact which were presented for determination. He argues that upon the evidence the case should have been decided in his favor instead •of in favor of the plaintiff. But the exceptions which appear in the record do not suffice to authorize a review of the facts. The defendant excepts to the second, third and fourth findings of fact, and to the first, second and fourth •conclusions of law, and also to the refusal of the trial judge fo find the matters of fact and, law requested by the defendant. The exceptions to the findings of fact are unavailable for any purpose. Code Civ. Pro., § 992.

The exceptions to the refusals to find are equally useless, inasmuch as the appeal book discloses no such refusals. The requests to find are set out therein, but there is nothing to show what was the disposition made of such requests or any of them, or that the trial judge ever passed upon them at all.

Notwithstanding this condition of the record, we have •carefully examined the evidence, and deem it quite sufficient fo warrant the conclusions reached by the court below. The principal question litigated was whether the plaintiff employed the defendant to do _ certain mason work on two "houses which the plaintiff built in'West Tenth street in the city of New York. The plaintiff testified expressly to a conversation with the defendant in which the defendant ■said he would give him $4,250 for doing the work. His tes"timony was corroborated by Samuel McMillan, a carpenter, .and building superintendent, who was also employed upon -the houses. The defendant, on «the other hand, swore that the plaintiff asked $4.250, but that he said no; and he added That was the only conversation I had with Mooney with reference to doing work for me. I did not at any other "time have any conversation with him in regard to his doing .any mason work for me. I did not at any time promise to let him do this work.” Upon these contradictory statements ■by the parties to the action as to the alleged contract of employment, the learned judge, who saw both witnesses and heard them testify, believed the plaintiff rather than the defendant, and we are unable to say that he erred in so' doing.

p. 885

The houses were constructed largely under the superintendence of the witness, McMillan, and the substance of the defense was that McMillan, and not the defendant was the real employer of the plaintiff. If a jury had rejected this view of the case, we should not feel justified in interfering with their verdict. Its rejection by the trial judge, upon conflicting proofs, affords no better reason for reversing the judgment than would exist if the action had been tried before a jury.

The judgment should be affirmed, with costs.

Van Brunt, Ch. J., and Daniels, J., concur.