Porter v. Smith

• Citation: 107 N.Y. 531,14 N.E. 446
• Parties: PORTER et al. v. SMITH et al.
• Decision Date: 13 December 1887
• Court: New York Court of Appeals

107 N.Y. 531

14 N.E. 446

PORTER et al.

v.SMITH et al.¹

Court of Appeals of New York.

December 13, 1887.

Appeal from general term, supreme court court, Fourth department.

Louis Marshall, for appellants.

M. M. Waters, for respondents.

FINCH, J.

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 that 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 by the New Code, which forbids exceptions to findings of fact, (section 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 assume that the case contained all the evidence bearing upon the questions sought to be raised. Perkins v. Hill, 56 N. Y. 87. But the situation is radically changed by the provision of the New Code forbidding exceptions to findings of fact, and permitting them to be raised without exceptions. Under that practice, the respondent gets no warning or notice of an intention to review questions of fact, unless the case certifies that all the evidence has been included. If it so certifies, the respondent must...