Beach v. Raymond

1 Hilt. 201 | New York Court of Common Pleas | 1856

Brady, J. —

Tbis is an appeal from an order made by Judge Woodruff at special term, Dec. 5, 1855.

Tbe -action was tried before a referee, wbo reported for tbe plaintiff; and a case was made with leave to turn tbe same into a bill of exceptions or special verdict. An appeal was taken

Írm tbe judgment entered on tbe report of tbe referee, and upon e case so made, to tbe general term of tbis court; and after the argument thereof, and before tbe court had given a decision thereon, and on tbe 23d of March, 1854, Raymond, one of tbe defendants, died. On tbe first of April following, tbe general term affirmed tbe judgment, and tbe judgment of affirmance was, by order of tbe court, entered as of a day during tbe lifetime of Raymond. On tbe 18th of June, 1855, on application of bis administrators, an order was made reviving tbe action in their names, for tbe purposes of an appeal to tbe Court of Appeals, and on tbe same day a proposed bill of exceptions was served, on their behalf, on tbe plaintiff’s attorney, containing exceptions in manuscript not appearing in tbe case as made and settled, and to which tbe plaintiff proposed an amendment striking out such manuscript exceptions, and wbicb amendment was allowed. Tbe defendants then moved for an order for tbe resettlement of tbe exceptions proposed, and of tbe amendments thereto proposed, and for an order that tbe amendment proposed to tbe bill of exceptions be disallowed, and tbe exceptions proposed be allowed. The order of tbe 5th of December above mentioned denied such motion.

Tbe plaintiff insists that tbe order is not appealable under section 349 of tbe Code; but, if appealable, only so on tbe certificate of Judge Woodruff under tbe rule of tbis court (March 22, 1851), wbicb was not complied, with, no certificate having been, obtained. He also insists that tbe appeal is irregular, because tbe papers, on which the question submitted arises, were not served on him; and further, that the exceptions being new exceptions, and not having been taken within ten days after the notice in writing of the judgment originally entered, they are' presented too late. Judge Woodruff has expressed bis opinion in favor of the last stated objection to the exceptions (2 Abbott, 204), and there is no doubt that it is fatal. Sections 268 and 272, of the Code, limit the time within which exceptions may be served to ten days after notice of the judgment upon the trial, either by the court or by referees. The ten days had long expired when the exceptions were served, and the appeal bad been heard and decided at a general term upon the whole case m® and settled. The right to turn the case into a bill of exceptions is limited (Rule 18) to thirty days after notice of the decision on such case; but there is no rule or precedent allowing exceptions to be taken, or interposed, as if made on a trial, after an argument in ianc on a case or bill of exceptions, in which they did not appear. The effect would be to present to the appellate court questions which were neither presented to nor considered by this court, and upon which there was no determination by this court. However that may be, the party who designs to avail himself of exceptions must take them in the manner and during the period allowed by the statute. If he does not, they are lost. The leave given to turn the case into a bill of exceptions, as stated by Judge Woodruff (2 Abbott, supra), “is not a leave to take exceptions in the future, but to convert the case (made for the purpose of reviewing the report of the referee, and which embraces his ruling upon the law as well as his finding on the facts) into a bill that shall exhibit the exceptions already taken, and which alone is suited to the purposes of an appeal to the court of last resort.”

This view renders the consideration of the preliminary objections unnecessary.

Order appealed from affirmed.