Roberts v. Tobias — 30 N.Y. St. Rep. 189

Majority

p. 189

Percival Roberts et al., App’lts, v. Francis H. Tobias et al., Resp’ts.^[1]

(Court of Appeals, Second Division,

Filed March 18, 1890.)

Headnote

1. Appeal—Exceptions—Code Crv. Peo., § 994.

, Defendants neglected to serve or file any exceptions to the findings of facts or conclusions of law made by the court as provided for by § 994 of the Code of Civil Procedure. Meld, that in this case the general term had reversed on questions of law and not of fact, and the evidence appearing in the appeal book did not support its finding.

2. Same.

If the general term had intended to place its reversal on the finding of the trial court that the assignment in question was intended to “ hinder, delay and defraud creditors, etc.,” which was not supported by the appeal book, there should have been inserted in the order a statement to the effect that the reversal was made upon questions of fact as well as law, and in the absence of such a statement this court is required to presume that the reversal was upon questions of law only.

Appeal from an order of the general term of the first department, reversing a judgment entered upon a decision of the special, term.

A. H. Ammidown, for app’lts; Charles II. Griffin, for resp’ts.

This action was brought to set aside an assignment made for the benefit of creditors upon the ground, as it is claimed, that the assignment was fraudulent and void for the reason that it did not contain a clause preferring the wages or salaries owing to the employees of the assignors as required by the provisions of chapter 328 of the Laws of 1884. The trial court found in favor of the plaintiffs and awarded them the judgment demanded in their complaint. If the decision was placed upon the ground claimed it was clearly wrong, and the judgment should have been for the defendants. Richardson v. Thurber, 104 N. Y., 606 ; 6 N. Y. State Rep., 489.

But the difficulty is that the defendants have neglected to observe and comply with the simple rules of practice prescribed by the Code which entitle them to a review of the judgment of the trial court. They have neglected to serve or file any exceptions to the findings of facts or conclusions of law made by the court as provided for by § 994 of the Code of Civil Procedure. If there was no evidence tending to sustain a finding of fact it was a ruling upon a question of law, and an exception should have been taken thereto. Code Civ. Pro., § 993.

The only exceptions appearing in the case are embraced in the following statement: “ The defendants respectfully except to the eighth and tenth proposed findings of facts, and as to the first and second proposed findings of law submitted by the plaintiff’s attorney herein.” The findings proposed by the plaintiff’s attorney are not printed in the appeal book, and we are unable therefore to determine whether they are the same as those signed by the trial judge. The exceptions do not purport to be taken to the decision of 'the court, and we do not think they can be so considered.

The general term, however, was of the opinion that it had the right to reverse the judgment even though no exception had been taken. We do not question the power of that court to reverse for errors committed upon the trial, even though they are not raised by exceptions. It is the duty of that court to examine the facts as well as law, and if errors have been committed involving the right of a party to recover, it may, in its discretion, grant a new trial The Grocers' Bank v. Penfield, 7 Hun, 279 -284; S. C., affirmed, 69 N. Y., 502 ; Mandeville v. Marvin, 30 Hun, 282 -288; Whittaker v. The President and Managers, etc., of the D. & H. C. Co., 49 id., 400 ; 22 N. Y. State Rep., 405; The Standard Oil Company v. The Amazon Insurance Company, 79 N. Y., 506 ; Hamilton v. The Third Avenue Railroad Company, 53 id., 25.

If, therefore, the findings of fact are unsupported by the evidence, or the conclusions of law are not warranted by the findings of fact, the general term have the power to reverse the judgment and order a new trial. But in this case the general term has reversed on questions of law and not of fact. The trial court has found as a fact “that the said alleged assignment is void and fraudulent, and was not made in accordance with the statutes in such cases made and provided, but was executed and delivered by the assignors therein named, with the intent to hinder, delay

p. 191

and defraud the creditors of said Emmens and Roach, including these plaintiffs.” The evidence appearing in the appeal book does not support this finding. The general term may have intended to have placed its reversal upon this ground, but it has not done so. Had it been so placed there should have been inserted in the order a statement to the effect that the reversal was made upon questions of fact as well as law, and in the absence of such a statement we are required to presume that the reversal was upon questions of law only. Code Civ. Pro., § 1338.

The general term has, therefore, permitted the finding of fact to which we have alluded to stand unreversed. By so permitting it, it not only supports but requires the conclusions of law made, and inasmuch as this court can only review exceptions,, it follows that we are powerless to give the defendant relief.

The order of the general term should, therefore, he reversed and the judgment of the special term affirmed, with costs.

All concur, except Potter, J., not voting.