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Smith v. Moulson

95 N.Y. Sup. Ct. 147 Court N.Y. Gen. Term English

Judges Dwight, P. J., Lewis and Bradley, JJ., concurred.

Delivered by Ward, J.:

Contents

Majority

p. 147
Mary Smith, Appellant, v. Maria Moulson, Respondent.

Headnote

A finding of fact without any evidence to support it — an exception is necessary to the review thereof.
Where a finding of fact is made by tlie court without evidence to support the finding, an exception is necessary to bring the case up for review, as the question whether there was evidence to support the finding is one of law, and if in such case no exception is taken to the ruling of the trial court and filed as required by section 994 of the Code of Civil Procedure, and no exception is taken to the conclusion of law that the complaint be dismissed, the judgment will be affirmed on appeal.
Appeal by tbe plaintiff, Mary Smith, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 5th day of October, 1894, upon the decision of the court rendered after a trial at the Monroe Special Term dismissing the plaintiff’s complaint upon the merits.
William E. Edmonds, for the appellant.
F. E. DraTte, for the respondent.

The principal objection raised to the judgment by the appellant is that the court found that the consideration for a contract for the purchase of the land between the parties had not been paid, and there was no evidence to support that finding. Where there is a finding of fact without evidence an exception is necessary to bring the case up for review as it is a question of law whether there was evidence to support the finding. (Mead v. Smith, 28 Hun, 639 ; Underhill v. Nichols, 8 Wkly. Dig. 276 ; Healy v. Clark, 120 N. Y. 642 .) There was no exception to the ruling of the trial court filed as required by section 994 of the Code of Civil Procedure. - At all events there should have been an exception to the conclusion of law that the complaint be dismissed.

The judgment should be affirmed, with costs.

Dwight, P. J., Lewis and Bradley, JJ., concurred.

Judgment affirmed, with costs.

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