Knell v. Stephan — 48 N.Y. St. Rep. 190

Majority

p. 190

Louis Knell et al., Resp’ts, v. William Stephan et al., App”lts.

(Supreme Court, General Term, Fifth Department,

Filed October 21, 1892.)

Headnote

Evidence—Objection—Wheu too late.

It is too late, upon the argument of an appeal, to object to the insufficiency of evidence which was received without objection and treated throughout the trial as establishing an essential fact in the case.

Appeal from a judgment in favor of the plaintiffs entered in Cattaraugus county on the report of a referee.

William H. Henderson, for app’lts ; C. S. Carey, for resp’ts.

The action was in the .nature of a creditor’s bill to reach the interest of William Stephan, the judgment debtor, in lands and their avails alleged to have been conveyed and turned over to his wife,- the defendant Mary Stephan, in fraud of creditors of the former. <-

The defendants object, on this appeal, that the proper foundation for a creditor’s bill was not laid by proof of a judgment and execution returned unsatisfied. Ho such objection was Specifically made at atiy time on the trial. There is in the record

p. 191

before us of the evidence taken on the trial an abstract of the judgment and execution alleged in the complaint, including date of the recovery and docketing of the judgment in Erie county, and of its docketing in Cattaraugus county, where the land was situated ; also of the issue of an execution to the sheriff of the latter county and of its return unsatisfied. This evidence was not objected to, nor was the objection made at any time that there was not competent and sufficient proof of judgment recovered and ■execution to the proper county returned unsatisfied before the commencement of the action.

There was a motion for a dismissal of the complaint at the close of the plaintiff’s case, but the objection above mentioned was not specified, nor was it included in any ground of the motion as made, except the statement that “ the plaintiffs have failed to prove a cause of action.” The objection was not sufficient.' The evidence in question, though informal, was evidently received and treated as sufficient, and as establishing without dispute the facts to which it related. The referee found those facts in accordance with the evidence so received, and there was not even an exception by the defendants to such finding, which upon the theory of the objection now made was without any evidence to support it, and, therefore, subject to exception. Code Civ. Pro., §§ 992, 993.' It is too late, upon the argument of this appeal, to object to the insufficiency of evidence which was received without objection and treated throughout the trial as establishing an essential fact in the case.

Other material facts in the case were found upon evidence mainly circumstantial, and consisting largely of inferences drawn from the testimony of the defendants themselves, which yet was sufficient to satisfy the mind of an astute and careful referee, and which, we are bound to say, was well calculated to produce that effect. The findings of fact in this case cannot be disturbed as unsupported by the evidence, and the conclusions of law and directions for judgment are in accordance with the facts found.

The judgment should be affirmed.

Judgment appealed from affirmed, with costs.

Macomber and Lewis, JJ., concur.