Murphy v. Board of Education — 25 N.Y. St. Rep. 154

Majority

p. 154

Denis Murphy, App’lt, v. The Board of Education of the City of Yonkers, Resp’t.

(Supreme Court, General Term, Second Department,

Filed June 28, 1889.)

Headnote

Appeal—Findings op pact—Case.

Findings of fact will not be reviewed unless it is stated in the case that all the evidence is returned upon which those facts depend.

Appeal from a judgment in an action tried before the court at the Westchester circuit without a jury.

John T. Brennan, for app’lt; Smith & Dougherty, for resp’t.

The testimony is conflicting, and the trial judge is much better fitted to determine what weight to give the differing statements than a tribunal that has not seen the witnesses possibly can be.

p. 155

It must also be remarked that the case does not show that all the testimony given below has been put before this court. For that reason, we cannot review the facts.

It is the duty of an appellant who intends to call the conclusions of fact in question, to put in the case a statement that all the evidence is returned upon which those facts depend. If the case contains no such statement, it is equal to saying to the respondent that only questions of law are to be taken up on appeal. See Howland v. Howland, 20 Hun, 472 ; Spence v. Chambers, 39 id., 193; Porter v. Smith, 107 N. Y., 531 ; 12 N. Y. State Rep., 479.

This rule is so well established that a respondent may properly rely upon it. And after a case has been made in a manner appropriate only for the review of questions of law, to reverse a judgment upon the facts would be an injustice to the respondent, who has a right to rely upon the court enforcing the rules it has announced for the guidance of litigants.

We have examined the exceptions, and find none that require the judgment to be interfered with.

It must therefore be affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.