98 N.Y.S. 464 | N.Y. App. Div. | 1906
The important questions of law which are presented by this appeal were disposed óf on a former appeal. (See Ceballos v. Munson Steamship Line, 93 App. Div. 593.) It was then held that the contract sued upon was not void for uncertainty or so absurd or unreasonable as to be unenforcible, and also that it was not necessarily in violation of the Federal Anti-Trust Law (26 U. S. Stat. at Large, 209, chap. 647). The verdict then'rendered in the plain tiffs’ favor" was found to.be against the weight of evidence, but the judgment of nonsuit which "folio wed the rendition of the verdict was reversed in order to submit the questions of fact to another jury.
Adopting that decision as the law of this case, there is no question of law now presented which seéms to require a reversal of the second judgment. FTo motion" was made for a nonsuit on the ground that the evidence did not establish a cause of action, and as there is no certificate'that the case contains all the evidence, we are limited to a review of the exceptions. The case of Rosenstein v. Fox (150 N. Y. 354) is cited by the learned counsel for the appellant as authority for the proposition that a certificate or statement that the case on appeal contains all the evidence is not required on the review of a judgment entered upon a verdict and of an order denying a motion for a new trial. That case, however, did not decide that such a certificate was not necessary in order to enable the appellant to obtain a review of the questions of fact involved in the controversy, but only decided that such a certificate was- unnecessary in order to enable the appellant to obtain a review of the exceptions to the rulings of a trial judge or to his charge, although based upon the absence or insufficiency of the evidence. The head note correctly states the scope of the decision in this respect, as follows : “ A certificate that the case on appeal contains all the evidence, or all the evidence upon the questions sought to be reviewed, is not required in an action tried by a jury to entitle the appellant to a review of exceptions to the rulings of the trial judge, or to his cha/rge, although based upon the absence or insufficiency of the evidence; and in such an action it must be. assumed that the respondent procured to be inserted in the case all the testimony he regarded as essential to sustain the rulings and cha/rge of the court!
The decision in Rosenstein v. Fox (supra) was based largely
See, also, Iaquinto v. Bauer (104 App. Div. 56) and cases cited, to the .effect that upon an appeal in a jury case from an order denying a motion for a new trial made upon the minutes, the court is "limited to a consideration of the exceptions taken at the trial, where the case does not show that all the evidence is returned.
The judgment and order should be affirmed.
Jenks, Hooker and Miller, JJ., concurred.
Judgment and order affirmed, with costs.