Young v. Young — 44 N.Y. St. Rep. 652

Majority

p. 652

John W. Young, App’lt. v. Sophia Young et al., Resp’ts.

(New York Common Pleas, General Term,

Filed March 7, 1892.)

Headnote

Appeal—Settlement op case—Notice op exceptions.

Plaintiff merely served his exceptions to the court’s refusal to find certain1 facts on defendant’s attorney, and incorporated them in his proposed case on appeal, but failed to file a notice of exception in the clerk’s office as-required by § 994 of the Code. Held, that on settlement of the case, the judge properly struck out such exceptions, with the requests and refusals to which they referred.

Appeal from order of the special term denying plaintiff’s-motion for a re-settlement of the case, or for an order restoring his-requests, refusals and exceptions to the case, as originally proposed.

Bullard & Shannon, for app’lt j Beyo, Buer &' Bauerdorf for resp’ts.

The plaintiff submitted to the judge by whom the case was tried, without a jury, certain requests for findings of fact and of law which were refused. If he desired to except to-such refusal, he was required to file a notice of exception in the clerk’s office, and to serve a copy thereof upon the attorney for the-adverse party. Code, § 994. It appears from the affidavit made-on his behalf" upon the motion, that he merely served his exceptions to the decision upon his adversary, and incorporated his-exceptions to the refusals of his requests in his proposed case on appeal. On settlement of the case, the judge struck out such exceptions, together with the requests and refusals to which they referred. A motion to restore them , to the case was made and denied, and from the order entered upon such denial this appeal, is taken.

It is apparent that the order was correct. While the case should contain so much of the evidence and other proceedings as-is material to the questions to be raised, and also the exceptions, taken by the party making the case, Code, § 997; 2 Rumsey’s Practice, 391, it should not contain exceptions which had not been duly and properly taken, nor any of the proceedings to-which those exceptions refer. Refusals to fin'd in accordance with requests are rulings upon a question of a law, Code, § 993,, and exceptions to rulings upon questions of law must be filed in the clerk’s office, so that they may be either inserted in or annexed to the judgment roll. Sec. 994.

The judge who disposes of the requests may either file or return them to the attorney, § 1023, but whichever course is adopted it is the duty of the latter, if he wishes to take a valid exception to the disposition made of them, to file such exception with the clerk and serve a copy upon his adversary within ten days after he receives a copy of the decision of the court and notice of the-

p. 653

entry of judgment thereupon. Sec. 994.' zThe language of that- and the preceding section excludes the inference that the exceptions to be so filed are only the exceptions to the facts found in. support of the decision. The words of the‘sections apply to all exceptions to all rulings upon request and a literal compliance with the enactment involves neither hardship nor inconvenience..

Order affirmed, with costs.

Bischoff, J., concurs.