37 N.Y.S. 854 | N.Y. App. Div. | 1896
The action was brought to restrain the use of the plaintiff’s trade mark by the defendant, and for damages. ■ After- evidence had been given upon both sides, the court dismissed the complaint, and from the judgment entered upon that decision this appeal is taken.
But two exceptions are found in the case and each of these is -an exception to the ruling of the court upon the admission or rejection of evidence. We have examined the rulings of the court in each case, and each of them was clearly -correct.
The decision in this case, as filed, contains a finding of fact and a conclusion of law. It is, therefore, not one of the short decisions permitted to be made, by section 1022 of the Oode. Under the provisions of that section, an exception taken to the decision puts the matter at large and authorizes the appellate court to review the'
The appellant, however, insists that the finding of n fact of the court was not warranted by the evidence. No requests to find were made, and there is no indication in the case anywhere that the appellant intends to review the facts. But we do not think that requests to find are now necessary where the court has made a decision containing findings of fact and conclusions of law. As the Code of Civil Procedure was originally passed it was necessary when one desired to put himself in condition to review the facts where the trial had been had before the court or a referee, that he should, before the decision was made, present to the court or referee requests for findings. (Code Civ. Proc. §§ 993, 1023.) If that was not done he was not in a situation where he could review the findings of fact. These sections, however, were repealed at the same session of the Legislature at which section 1022 was amended so as to permit a short decision to be filed which should ,not contain findings of fact, and the Code was left without any provision for a review of questions of fact if the decision was made after the old fashion of stating separately the findings of fact and the conclusions of law. In that state of affairs it is clearly not required of a party that he should make requests to find. It was never necessary that he should file exceptions to the findings of fact. (Lefler v. Field, 50 Barb. 401.) Under the practice before the' Code of Civil Procedure,, no requests to find were necessary to enable one to review the facts upon an appeal from the judgment after a trial by the court. This state of affairs, as we think, now exists, and where the decision has been made containing findings of fact and conclusions of law separately stated, the defeated party is at liberty upon' appeal to review the facts without having filed any exception to the decision, if he is otherwise in a situation to do so. To put himself in that situation he must make it appear that the case contains all the evidence given upon the trial. Unless that is done, the court finding that some evidence has been omitted, must assume that the evidence omitted was sufficient to sustain the findings of fact, whatever might have been its conclusion upon the evidence contained in the case. It does not appear in this case that the case contains all the
Van Brunt, P. J., Barrett, Williams and Patterson, JJ., ' concurred.
Judgment affirmed, with costs.
