Onderdonk v. Voorhis — 25 N.Y. Super. Ct. 623

Majority

p. 623

Abraham S. Onderdonk, plaintiff, vs. Jacob Voorhis et al. defendants.

Headnote

After argument of a case upon appeal from a judgment rendered by a referee, leave will not be given to a party, on motion, to introduce as part of the case on the appeal exemplified or other copies of proceedings on which a warrant of attachment was issued; where the papers were in existence, and known to be so, by the counsel for the applicant, at the time of the' trial before the referee, and in the exercise of his discretion he refused to produce them. (Before Robertson, Ch. J., and Moncrief and Mon,ell, JJ.)

Heard January 16, 1864;

decided --, 1864.

This is a motion, after argument of a case made upon an appeal from a judgment rendered by a referee agáinst the defendant, for leave to introduce as part of the case on the appeal

p. 624

exemplified or other copies of the proceedings on which the warrant of attachment mentioned in the pleadings in the above entitled action issued, &c.

John Townshend, for the motion.

R. M. Harrington, opposed, for the appellants.

By the Court,

The papers sought to be introduced and considered as a part of the case argued upon this appeal were in existence and known to be so by the learned counsel making this application, at the time of the trial before the referee, and in the exercise of his discretion he refused to produce them, and upon the argument insisted that their production was unnecessary. This might suffice to deny the motion. But again, if these papers were now permitted to he read as a part of the case, evidence will appear in it not considered by the court (referee) below, upon or relating to which there are no findings of fact or of law, against the introduction of which an opportunity is not given to the appellants to make objections and have'the benefit of exceptions to rulings against them, and no leave given to him to controvert; in fine a case radically differing from the action as tried, and from the judgment on which this appeal is taken. Again ; the papers offered are not a record importing an indisputable fact; the matters stated in them might be shown to be false or inaccurate. That “Records * * shall be evidence of the facts therein contained ” &c. is provided by statute, (1 R. S. 378, § 159,) while “ copies of all papers duly filed * * shall be evidence ” * (only,) (Id. 377, § 65.)

In Bank of Charleston v. Emeric & Davenne, ( 2 Sandf. 718 ,) is an illustration of the former character, of evidence being admitted to be read upon the argument. The plaintiffs, suing as a corporation, neglected to prove its existence under the act passed in the state of South Carolina, A properly exemplified copy of the act of incorporation was produced ; the fact then was incontrovertible, and the court held that the case should

p. 625

not be sent for a new trial for the sole purpose of the evidence which must be conceded -as a fact and “ upon which no question could arise.” The other case, (Fry v. Bennett, 2 Duer, 651 ,) is a direct authority of the latter class of evidence, and is decisive against the application ; which must be'denied with seven dollars to the appellants.

Cases cited

Bank of Charleston v. Emeric 2 Sandf. 718 N.Y. Super. Ct. 1850-05-25 p. 624