Kruger v. Constable, 128 F. 908

128 F. 908 | 2d Cir. | 1904

PER CURIAM.

These cases were heard and determined by. the court upon a written stipulation, filed with the clerk, waiving a jury trial, under Rev. St. U. S. § 649 [U. S. Comp. St. 1901, p. 525]. The court has filed an exhaustive opinion reviewing all the facts, and finding that, upon the evidence, there is no proof to support the cause of action. Such finding has the same effect as the verdict of a jury. Rev. St. U. S. § 649; Dooley v. Pease, 180 U. S. 126, 21 Sup. Ct. 329, 45 L. Ed. 457; Hathaway v. Cambridge National Bank, 134 U. S. 494, to Sup. Ct. 608, 33 L. Ed. 1004.

On these writs of error, therefore, this court is confined to a review of exceptions taken to the admission or exclusion of evidence, or to rulings upon questions of law. Rev. St. U. S. § 700 [U. S. Comp. St. 1901, p. 570]; Walker v. Miller, 59 Fed. 869, 8 C. C. A. 331; Mercantile Trust Co. v. Wood, 60 Fed. 346, 8 C. C. A. 658.

Two exceptions only were taken in the course of the trial. One was founded upon an objection to the introduction of a prior contract for the sale of the property in question, on the ground that said contract was merged in a subsequent deed to plaintiff’s grantors. This evidence was not admissible to contradict or vary the terms of the deed, and it does not appear that it was admitted for any such purpose. It was clearly admissible to show that the grantees, prior to said conveyance to them, knew of the existence of a certain map which included said lots.

The other exception is founded upon a formal objection to the introduction of certain deeds and mortgages made by plaintiff’s grantors. This evidence was admissible as bearing upon the question of an alleged dedication by plaintiff’s grantors while in possession of the property. This exception, however, is not discussed in the brief, and was not referred to in the argument of counsel.

Counsel for plaintiff does not question the Correctness of the rulings of the court upon the questions of law, but only contends that the findings are not supported by the evidence. Tn view of the stipulation, these facts are not open to review in this court. The fatal error on which his contention' is based is that, because the record of certain cer-tiorari proceedings in the New Jersey courts was properly admitted in these cases, the evidence therein is admissible to prove the facts as against the parties herein.

■ Independently of • these considerations, however, we have examined the record and are sátisfied that, in any view of the case, the conclusion reached by the court below was correct, and that there was no proof of a dedication of the land in question before the execution and delivery of the deeds to plaintiff’s grantor.

The judgments are affirmed.