Seligman v. Hahn — 53 N.Y. St. Rep. 534

Majority

p. 534

David Seligman, Resp’t, v. Isaac Hahn, App’lt.

(City Court of New York, General Term,

Filed June 19, 1893.)

Headnote

Appeal—Case.

Where the cage on appeal does not contain a certificate that it contains all the evidence given on the trial, the appellate court cannot review questions of fact.

Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.

H. M. Whitehead, for app’lt; Epstein Brothers, for resp’t.

The appeal record does not contain the usual certificate, stating that it contains all the evidence given upon the trial; we must therefore decline to review questions of fact.

We find no errors of law and judgment must be affirmed,, with costs.

Under the contract set forth in the second paragraph of the complaint, and not denied by the answer, the plaintiff was not bound to first pursue the principal debtors to-judgment and executions as a condition precedent to his cause of action against defendant; moreover, if he was, the evidence alfolio 21 was sufficient to permit of a finding by the jury that the defendant had waived the condition as to certain of the debtors-whose debts aggregated $315.50, and it would seem that the jury had so found by returning a verdict for only $157.75, just one-half of such debts, as the plaintiff sought by pleading and evidence-to hold defendant liable for one-half of all of certain uncollectable debts aggregating $480.

This verdict cannot be reviewed here as regards the weight of evidence, because there is no certificate that the case on appeal contains all the evidence.

The judgment and order should be affirmed, with costs.