Hermann v. Van Buren — 64 N.Y. St. Rep. 631

Majority

p. 631

Theodore L. Hermann, Resp’t, v. Thomas B. Van Buren, App’lt.

(New York, Common Pleas, General Term,

Filed January 7, 1895.)

Headnote

Appeal—Record.

A ruling admitting in evidence a paper, not included in the justice’s return, will not he reviewed.

Appeal from a judgment in favor of plaintiff.

Albert Day, for app’lt; Cuggenheimer, Untermyer & Marshall, for resp’t.

A certain paper was admitted in evidence .against the objection and exception of the defendant (appellant), but is not included in the justice’s return. A motion by the appellant for leave to amend the return by supplying this paper has been denied because not made until after this court had intimated, upon the argument, its decision upon the questions presented by the return as filed. Warren v. Campbell, 37 St. Rep. 762 ; 14 N. Y. Supp. 165 . The exception is therefore ineffectual, as, in the absence of the paper, it cannot be determined that it was improperly admitted. The appellant has consequently failed to show error of law, and only a question of fact remains to be passed upon; and, after a review of the evidence, we are confirmed in our opinion, formed and intimated upon the argument, that the facts would not warrant a reversal of the justice’s decision.

Judgment affirmed, with costs.