La Societa Italiana Di Beneficenza v. Sulzer — 47 N.Y. St. Rep. 292

Majority

p. 292

La Societa Italiana Di Beneficenza, Resp’t, v. Catharine Sulzer, App’lt.

(New York Superior Court, General Term,

Filed July 5, 1892.)

Headnote

1. Appeal—Case—New Tbial.

To bring up for review an order denying a motion for a new trial, the

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case must contain such order. A mere exception to the refusal to grant the motion presents no question for review.

2. Pleading—Election.

Where the answer to an action on contract alleges that it was procured by false representations, and sets up a counterclaim for damages sustained by plaintiff's failure to perform fully, an election between these defenses may properly be required.

3. Contract—Damages—Representations.

To warrant a person in incurring expenses on the faith of representations, they must relate to existing material facts; expressions of opinion or expectations are insufficient for that purpose.

Appeal from judgment in favor of plaintiff, entered upon verdict, and from alleged order denying defendant’s motion for a new trial.

Action upon an alleged promise by defendant to pay plaintiff’s assignor, the United Italian Societies, a sum of money for holding its picnic in her park. The answer alleged that the promise was obtained by false representations as to the number who would attend, and a counterclaim for damages sustained by defendant because of the failure of said assignor to fully perform.

Defendant was to have the privilege of furnishing wines and refreshments on the grounds, the societies agreeing not to bring any. Some of the societies held their picnics elsewhere, and such as came brought their own wines and refreshments with them.

Lorenz Zeller, for app’lt; Warren W. Foster, for resp’t.

—The case contains no certificate or statement or other proof that the case on appeal contains all the evidence, and consequently this court cannot determine that the • order denying defendant’s motion for a new trial, if such order was made, is erroneous as contrary to the evidence or as against the weight of evidence.

Moreover, the case contains no order denying motion for new trial. A mere exception to the refusal to grant the motion, it has been repeatedly held, presents no question of fact for review.

For the reasons stated the exceptions only can be reviewed, and, if they are found untenable, the verdict of the jury must be held to have conclusively established that the contract sued upon was not procured from defendant by representations of existing material facts that were false and fraudulent, and also that the contract was substantially performed on plaintiff’s part.

The trial judge properly compelled the defendant to elect either to stand on her alleged counterclaim and to affirm the contract, or to abandon the counterclaim as such and to stand on the alleged facts as a defense. Defendant could not have the benefits of a valid contract without bearing its burdens. She could not be permitted to affirm in part and rescind in part. To such a state of facts the case cited by appellant’s counsel, 67 N. Y., 237 , has no application.

The offered evidence of preparations made by the defendant for the picnic was properly excluded. The only theory on which such evidence might be admissible, is that it goes to -show defendant’s belief in the representations made. But no represen

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t&tion is available for that purpose, unless it is a representation as to an existing material fact. It was made to appear that the representations relied upon for rendering the excluded evidence admissible related to mere expectations, and not to existing material facts. If the defendant wished to rely on the representations of expectations which she claimed plaintiff’s committee made to her, she should have exacted from the committee a guaranty of the number to be present or a guaranty of profits.

The questions at issue were fully and fairly submitted to the jury under a charge which carefully guarded every right which the defendant had, and no exception appears anywhere which calls for reversal.

The judgment should be affirmed, with costs.

Freedman and Dugro, JJ., concur.