Altmayer v. Metropolitan Elevated R. Co. — 38 N.Y. St. Rep. 530

Majority

p. 530

Aaron Altmayer, Resp’t, v. The Metropolitan Elevated R. Co. et al., App’lts.

(New York Superior Court, General Term,

Filed May 4, 1891.)

Headnote

Appeal—Judgment—Omission of findings.

An omission of the trial judge to include in his decision certain findings and conclusions found by him upon request is not ground for reversal in the absence of a motion to correct such omission.

Appeal by defendant from judgment entered on findings and conclusions made at special term.

Julien T. Davies and I. C. Thomson, for app’lts; Charles Gibson Bennett, for resp’t.

It is objected as a sufficient cause for reversal that certain findings and conclusions of law found at the request -of the defendants, were omitted from the decision made by the judge. In such a condition of the case, there is no subject matter of an appeal. There is no action of the court, which may be reviewed. If the omission were irregular, the defendants might have made a motion for the correction of the omission and they would have a right to appeal from a denial of the motion. In the absence of such a motion and order the omission appears to be without objection on the part of the defendants and that

p. 531

evinces a consent that the case proceed and appeal he heard on the decision as made.

The other objections have been decided unfavorably to the defendants by other cases.

Judgment affirmed, with costs.

Sedgwick, Ch. J., and McAdam, J., concur.