33 N.Y.S. 898 | N.Y. Sup. Ct. | 1895
No certificate is found in the appeal book that the case contains all the evidence taken at the trial. In the absence of such a statement, the respondent is entitled to rely on the assumption that there was no intention to ask a review of the rulings on the question of fact. Porter v. Smith, 35 Hun, 118, affirmed 107 N. Y. 531, 14 N. E. 446; Halpin v. Insurance Co., 118 N. Y. 171, 23 N. E. 482; Goodrich v. Gillies, 62 Hun, 479, 17 N. Y. Supp. 88. In Dibble v. Dimick, 143 N. Y. 555, 38 N. E. 724, it is said: “It is now well settled that, where the party appealing desires the court to review the facts, he must insert in the record a statement that it contains all the evidence, or all that is material to the question sought to be reviewed.” In Halpin v. Insurance Co., 118 N. Y. 171, 23 N. E. 482, it was held that, where there is a finding of fact by a court or referee, without evidence to support it, it is a ruling upion the question of law, and, if excepted to, presents a legal question. That case seems to reassert the doctrine laid down in Spence v. Chambers, 39 Hun, 193. Section 993 of the Code provides that “a finding without any evidence tending to sustain it, is a ruling upon a question of law.” In Travis v. Travis, 122 N. Y. 453, 25 N. E. 920, the section was construed, and in that case it appeared: “No exception was taken to any finding of fact, so as to raise the question of law that there was no evidence tending to sustain it.”
The referee found that the money paid by the plaintiff into the Binghamton office was deposited in the City National Bank of Binghamton to the credit of the Central City Stock & Grain Exchange of Syracuse, Limited, in the name of George H. Wright, treasurer; and it is claimed by the appellants that that finding is not supported by evidence. According to the testimony given by the plaintiff’s witness Seymour, the course of business between the Binghamton office and the Syracuse office was stated in detail. He states that he remembers West paying in about $1,800, and that “whatever was due, it was deposited to their credit,”—that is, to the credit of the Syracuse office; and the books that were kept at the time corroborate the statement made by the witness. The witness referred to a statement of September 18th, that came to the Binghamton office from the Syracuse office, after the transaction of September 18th; and he says that that statement shows the two transactions mentioned by the plaintiff in his testimony; and a further statement was produced, indicating what was called for on the 19th of September to be deposited to the credit of the Syracuse office.
It was found as matter of fact by the referee “that during the month of September, 1888, the defendants Conrad J. Fisher and James O. Bennett were not members of the Central City Grain & Stock Exchange of Syracuse, Limited, and had not been such members for a considerable time prior thereto.” Bennett testified that in the year 1888 he was not in business in Syracuse prior to October 11th of that year. And Wright testifies that during the month of September Bennett and Fisher “were not in the concern.” We find in the case no satisfactory evidence indicative that Fisher and Bennett actually received the money paid over and advanced by the plaintiff. When the plaintiff entered into the transaction, it was with the understanding that the property should not be delivered, and that only the difference in the market should be paid or received; and the transaction was, therefore, a wager on future market price, and void, under the statute. Kingsbury v. Kirwan, 77 N. Y. 612; Story v. Salomon, 71 N. Y. 420. Parol evidence was admissible and was received to show that the real understanding between the parties when the orders were given was that the property should not be delivered, but that only the differences in the market price should be paid or received. Peck v. Doran & Wright Co., 57 Hun, 343, 10 N. Y. Supp. 401; Dwight v. Badgley (Sup.) 14 N. Y. Supp. 500; Kenyon v. Luther (Sup.) 4 N. Y. Supp. 499; Amsden v. Jacobs (Sup.) 26 N. Y. Supp. 1000. The statute which has been construed in the cases to which reference has been made provides that any person who shall deliver or deposit any money upon the event of any wager may sue for and recover the same of the winner, “or persons to whom the same shall be paid or delivered.” 1 Rev. St. p. 662, § 9. And it is contended by the appellants that Bennett and Fisher are not liable, because they were not, in fact, at the time West paid in his money, in September, 1888, partners or members of the firm which carried on the business under the name of the Central City Stock & Grain Exchange, Limited. To escape the force of that contention, it is claimed in behalf of the respondent that Mr. West had dealings with the parties in .1886, and that he was informed that Bennett and Fisher were connected with the Syracuse office. The evidence on that subject is not very definite or certain. It seems that West received some information upon the subject of the connection of Bennett and Fisher with the Syracuse office at that time, but a fair consideration of the whole evidence would seem to justify the conclusion that the time West had a transaction in 1886 with the Syracuse office, Bennett and Fisher were not in fact connected with the business carried on in the Syracuse office. We think, the evidence is insufficient to warrant the .application of the rule contended for by the respondent, to the effect that, once having been partners, the liability as such partners continues until notice is given of