Hedges v. Polhemus

Unfortunately for the position assumed by the appellants, their appeals fails to bring before the general term any question, either of law or fact, touching the merits of the action. An inquiry as to whether the conclusion of the trial judge was correct as matter of law could have only been called for by an exception taken and filed as prescribed by the Code of Civil Procedure (sections 994, 1022, as amended 1894, and section 1346), which step the appellants omitted from their practice. The result is that the only questions of law presented for our determi-" nation are those raised by exceptions taken to rulings upon the trial. Mayor, etc., v. Erben, 24 How. Prac. 358. The note in the extract from the clerk’s minutes of the trial that “ defendants’ attorney excepts ” to the court’s direction of judgment for the plaintiff is not equivalent to the exception required by the statute and in an action tried by the court without a jury, at all events, no question of law is thereby raised (Code Civ. Proc. §§ 994-996), even if such an exception is taken in a case availing for the assignment- of error. See Greer v. Hazard, Hazard & Co., 39 St. Rep. 74 ; Dearing v. Pearson, 8 Misc. Rep. 269 ; 59 St. Rep. 201 ; Gundlin v. Hamburg-Am. Packet Co., 8 Misc. Rep. 291 ; 59 St. Rep. 208 . Further, the facts are not before us because of the omission from the case of a certificate that the evidence, as there embodied is complete. Porter v. Smith, 107 N. Y. 531 ; 12 St. Rep. 479 ; Aldridge v. Aldridge, 120 N. Y. 614 ; 31 St. Rep. 348 . There is a further defect, in that the case does not appear to be certified by the trial judge in accordance with section 997 of the Code. See Green v. Roworth, 4 Misc. Rep. 141 ; 53 St. Rep. 129 .

The only exception urged by the appellants is that taken to the exclusion of certain evidence. The issue in the action was solely as to the validity of a chattel mortgage the suit being brought by a receiver appointed in supplementary proceedings in the interests of certain judgment creditors of the mortgagor to set aside the instrument. Upon cross-examination of one of these creditors he was asked by appellants’counsel, “Did you not subsequently take a chattel mortgage yourself for this indebtedness? ” and an exception was taken to the exclusion of the question for immateriality. x The claim in suit being based solely uppn the judgments obtained by the creditors, and the defendants’ position being rested exclusively upon the validity of the mortgage before the court,- as was admitted by counsel, the evidence was cer

The judgmpnt should be affirmed, with costs.

All concur.