107 N.Y. 531 | NY | 1887
The General Term refused to review the questions of fact sought to be argued by the appellants, upon the ground that the case as made did not contain a statement that all the evidence given upon the trial was set forth within it; and the correctness of such ruling presents the sole question on this appeal. The necessity of the certificate has been asserted several times in the Supreme Court (Spence v. Chambers, 39 Hun, 193; Howland v.Howland, 20 Hun, 472), and has been justified upon the ground of the changed practice under the new Code, which forbids exceptions to findings of fact. (§ 992.) The theory upon which a case is prepared and settled has long been understood to be that the appellant should insert in it all the evidence bearing upon the questions intended to be raised, and the respondent add by amendment whatever he deemed necessary to a solution of those questions. An exception appearing in the proposed case serves as a notice to the respondent of an intention to raise the question of error in the ruling excepted to, and puts upon him the responsibility of adding by amendment any needed proof. Thus on a motion for a nonsuit upon the ground that the evidence does not show a cause of action, an exception to the ruling warns the respondent that he must add any omitted fact essential in his judgment to sustain the ruling. And where, under the old Code, which permitted exceptions to findings of fact, such an exception was taken, it was notice of an intention to assail such finding as erroneous, and if any proof necessary to sustain it was omitted from the proposed case it became the duty of the respondent to supply it. We, therefore held that the General Term, on appeal, should *534
assume that the case contained all the evidence bearing upon the questions sought to be raised. (Perkins v. Hill,
We therefore deem it our duty to approve of the practice adopted.
The judgment should be affirmed, with costs.
All concur, except RUGER, Ch. J., not voting.
Judgment affirmed. *535