Hugo v. Shank — 23 N.Y. St. Rep. 312

Majority

p. 312

Robert R. Hugo et al., Resp’ts, v. Lydia A. Shank, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed April 12, 1889.)

Headnote

1. Exceptions to findings of fact—Code Civil Pbo., § 992.

Section 992 of the Code Civil Procedure in terms precludes exceptions to findings of fact, as such.

2. Same—Code Civil Pbocedube, § 993.

Section 993 declares a finding of fact which is without any evidence tending to sustain it, or a refusal to make any findings, reasonably requested, to be a ruling upon a question of law and subject to exception, as such under section 992.

3. Same—When unavailing—Appeal.

A defendant's exceptions to the findings of fact of a referee, where there was no request to find otherwise than as found by such referee, are unavailing, and are not the subject of review on appeal.

4. Evidence—Admissibility of.

The testimony of a witness in answer to a question calling, not for matter of opinion, hut for a custom or rule of the trade, is admissible

Appeal from a_ judgment entered on the report of a referee, in an action for the foreclosure of a mechanics’ lien.

Woodin & Warren, for app’lt; L. A. Pierce, for respt’s.

The conclusions of law of the referee were fully warranted by his findings of fact; no one of those findings seems to have been without some evidence tending to sustain it, and the question whether any such finding was against the weight of evidence is not presented by any exception contained in the record before us. There was no request to find otherwise than as found by the referee, and, of course, no exception to any refusal so to find.

Section 992 of the Code of Civil Procedure, in terms, precludes exceptions to findings of fact, as such; but section 993 declares a finding of fact, which is without any evidence tending to sustain it, or a refusal to make any finding reasonably requested, to be a ruling upon a question of law, and subject to exception, as such, under section 992. From which it results that the only mode of reviewing a finding of fact of a court or referee, as being against the weight of evidence, is by means of a request to find, and an exception to the refusal to find as requested. The defendant’s exceptions to findings of fact were therefore unavailing, and those findings are not subject to review on this appeal. Only two or three of the exceptions taken on the trial are presented in the argument of counsel, and but

p. 313

One of them seems to require remark. One of the objections made to the plaintiff’s performance of their contract was that the ceilings of the second story were not as high as required by the specifications. A witness called by the plaintiff was asked: “ In measuring for a nine foot ceiling, from what points do you measure?” The question was objected to as “incompetent and immaterial, and not subject of opinion.” The answer was properly admitted. The question called not for a matter of opinion, but for a custom or rule of the trade. There was no objection to the competency of the witness, and the matter of his answer was competent, under the rule established by such cases as Walls v. Bailey ( 49 N. Y., 470 ), [quoting Boorman v. Johnson, 12 Wend., 573 ]; Hinton v. Locke ( 5 Hill, 437 ); Whitney v. Hop Bitters Co. (18 N. Y. State Rep., 989). See, also, Johnson v. DePeyster, 50 N. Y., 666 .

There is no other exception which seems to require discussion.

The jugment should be affirmed, with costs.

All concur.