Gallup v. Babsen — 10 N.Y. Sup. Ct. 598

Majority

p. 598

JOHN T. GALLUP, Respondent, v. WILLIAM R. BABSEN and others, APPELLANTS. WILLIAM H. WELLS and another, Respondents, v. ISAAC S. HOLBROOK, WILLIAM R. BABSEN and another, Appellants.

Headnote

Appeal—when case wMl not he reviewed upon the merits—paints not taken at the trial cannot he raised on appeal.

When, upon' the trial of an action, certain points are insisted upon by the defendant’s counsel, the attention of the court being called to no others, and an appeal is taken upon a record, not assuming to contain all the evidence, the defendant’s counsel cannot, upon the hearing of the appeal, insist upon a new defense, viz., that the plaintiff's case was not made out upon the merits, at the trial.

p. 599

Appeal from a judgment entered in favor of the plaintiffs upon the trial of each of the above entitled actions by the court without a jury.

A. 8. Diossy and B. 8. Guernsey, for the appellants.

Wm. Wickham, for the respondents.

These cases are in the main substantially alike. They are to enforce .a mechanic’s lien ; and, after the plaintiff rested, the defendants asked a dismissal on the grounds: 1. That the lien had not been prosecuted within one year; 2. That the notice was not filed with the town clerk; 3. That the summons was served too late. The cause was tried by the court without a jury, and the attention of the learned judge was not called to any other defect of proof, which might have been supplied. It was apparently admitted and taken for granted, that the only .grounds of defense were those stated. The judge overruled the points raised, and we think correctly, and the defendant, having appealed, now makes a new ground, not made before the court below, that the case on the merits was not made out.

The defendants below did not sum up the case, or request any findings, so far as the record shows, that could call attention to the point now made, and it does not appear even that the case on the appeal contained all the evidence on the trial-.^[1] The proof shows the judge right on the points made. The sole question presented here, is, can the defendant try' his case on certain points of fact, calling the attention of the court to no other, admitting in fact that all others are proved, and then appeal on a record not necessarily containing all the evidence, take the point that the plaintiff has failed to make out an issue, perhaps really admitted. We think this cannot be done,^[2] It does not appear on the record, that, had the point now raised been taken at the trial, it could not (if it really exists) have been cured. Experiments are not to be encouraged,

* Price v. Keyes, 3 N. Y. S. C., 730; Cox v. James, 45 N. Y., 557 .

† † Ingersoll v. Bostwick, 22 N. Y., 425 ; Johnson v. Whitlock, 13 id., 345; Douglass v. Day, 3 Keyes, 434.

p. 600

nor is the record on questions of fact to be critically examined, where no point below was taken to call attention.

Present — Barnard, P. J., and Donohue, J.

Judgment affirmed, with costs.