Rochester Lantern Co. v. Stiles & Parker Press Co.

• Decision Date: 04 October 1892
• Citation: 135 N.Y. 209,31 N.E. 1018
• Parties: ROCHESTER LANTERN CO. v. STILES & PARKER PRESS CO.
• Court: New York Court of Appeals Court of Appeals

135 N.Y. 209

31 N.E. 1018

ROCHESTER LANTERN CO.

v.STILES & PARKER PRESS CO.

Court of Appeals of New York.

Oct. 4, 1892.

Appeal from supreme court, general term, fifth department.

Action by the Rochester Lantern Company against the Stiles & Parker Press Company for breach of a contract by defendant to make and deliver certain steel dies. From a judgment of the general term, (16 N. Y. Supp. 781,) affirming a judgment entered on the report of a referee in plaintiff's favor for $1,119.30 damages and costs, defendant appeals. Reversed.

Bacon, Briggs, Beckley & Bissell, (Theodore Bacon, of counsel,) for appellant.

Cogswell, Bentley & Cogswell, (Wm. Nathaniel Cogswell, of counsel,) for respondent.

EARL, C. J.

The defendant brings this appeal without having made a case containing any of the evidence, and relies solely upon exceptions contained in or annexed to the judgment roll, as provided in sections 994 and 997 of the Code.¹ We do not know what the evidence upon the trial was except as we are informed by the findings of fact. The defendant does not complain of the findings of fact made by the referee; but it finds fault with his rulings upon matters of law, and the sole question before us is whether the rulings are justified by the facts found. In other words, do the facts found justify the judgment? The learned counsel for the plaintiff, however, contends that if the findings of fact contained in the record are insufficient to uphold the judgment, then we may assume that there was evidence upon the trial sufficient to justify other findings of fact which would support the conclusions of law. Such undoubtedly is the rule when, upon an appeal, a case has been made containing the evidence. Then the appellate court may look beyond the findings of fact into the evidence, and see if there is any evidence to support the conclusions of law; and it may affirm the judgmenteven if the findings of fact actually made do not support it, if it finds sufficient evidence to justify it. But there is no foundation for this rule where the appeal is upon the judgment roll alone, and the evidence is not before the court. Then the appellate court can know nothing about the evidence, except as it is embodied in the findings of fact. It cannot know that there was any other evidence, and there is no room or ground for presuming that there was any. In the former case there is no presumption that there was any other evidence than that contained in the record. But, finding the evidence there, the court may presume, for the purpose of upholding the judgment, that the judge or referee found the facts which the evidence justified. But in the latter case the rule contended for on behalf of the plaintiff would require the court to presume, not only the evidence, but the findings of fact based upon it. For this there is no reason. The party succeeding upon a trial before a judge or referee must see to it that he has findings of fact sufficient to uphold his judgment; and if he does not he is exposed to the peril of a reversal of his judgment by an appeal based solely upon the exceptions of the defeated party to the conclusions of law. If the rule contended for by the plaintiff is sustained, then very rarely, if ever, would it be safe for a defeated party to appeal without a case, as it would nearly always be possible to presume facts were proved, although not actually found, which would support the judgment. The law upon this matter of practice by some inadvertence has fallen into some confusion and conflict, and it is time that the practice should be finally settled.

In Chubbuck v. Vernam, 42 N. Y. 432, the statement in the headnote that, ‘where the case contains none of the evidence, and only the findings of fact and conclusion of law of the referee, an exception to the conclusion of law, as not authorized by the facts found, is not good,’ went beyond the actual decision. In that case there was a general finding of the facts against the plaintiff, and with that finding in the record it could not be said that the conclusion of law was without support; and besides, the judgment was affirmed without any resort to presumptions upon the facts actually found. There were, however, some unguarded expressions in the opinion of the chief judge which were disapproved in Stoddard v. Whiting, 46 N. Y. 627, where Judge GROVER said: ‘The counsel for the respondent insists that, as the case does not contain any of the evidence given upon the trial before the referee, but only the facts found by him, and his legal conclusions thereon, and the exceptions taken by the appellant to such legal conclusions, no question is presented which can be reviewed by this court;’ and cites in support of this position, Chubbuck v. Vernam, 42 N. Y. 432. In the syllabus of the reporter it is stated that when the case contains none of the evidence, and only the findings of fact and conclusions of law of the referee, an exception to the conclusions of law, as not authorized by the facts found, is not good. One of the opinions delivered sustains this idea. The learned judge says: ‘The party seeking to uphold the report of the referee is entitled to the benefit, not only of the facts actually found by the referee, but also, if necessary to sustain the conclusions of law by the referee, to all such facts as the evidence tended to prove, and as the referee might have found in his favor. Hence, without examining the case further, there would be abundant reason for affirming the judgment.’ This entirely overlooks the obvious fact that, in the absence of all the evidence, it can never appear that there was any evidence tending to prove any additional facts, and therefore authorizing an assumption of the finding of any such facts. The judge did not base his opinion upon this ground alone, but proceeded to show that from the facts the conclusions of law were correct. In the other opinion published no allusion is made to any such reason for the affirmance of the judgment. This shows that no such question was determined in the case. The true rule, where the case does not contain any of the evidence, but the findings of fact only, is to assume that there was no evidence from which any other facts could be found; and where the conclusions of law in such a case have been excepted to, the question to be determined is whether such conclusions are warranted by the facts found. And the judgment was reversed. In Kellogg v. Thompson, 66 N. Y. 88, Chief Judge CHURCH said: ‘The evidence given on the trial is not contained in the case. We must assume, therefore, that the facts proved were sufficient to sustain the findings, and also any additional findings, necessary to sustain the conclusions of law, not in conflict with the affirmative facts found.’ He made no reference to the case of Stoddard v. Whiting, nor does it appear that his attention was called to it by counsel. The remark was purely obiter, as the judgment was affirmed without indulging in any presumptions upon the facts actually found. In Murray v. Marshall, 94 N. Y. 617, Judge FINCH adopted the obiter dictum contained in Kellogg v. Thompson, without referring to the case of Stoddard v. Whiting, and apparently without having his attention called to it; but his conclusion was finally reached by taking the facts as they had been actually found at the trial term. In Gardiner v. Schwab, 110 N. Y. 650, 17 N. E. Rep. 732, Judge GRAY said: ‘As the case presented here does not contain the evidence given upon the trial, the correctness of the conclusions of law made by the referee is alone the subject for review. If they are sustained by the findings, the judgment must be sustained. We are only concerned with the legal effect of the facts as found. These findings of fact we must assume to be true, and we must also assume that the facts proved on the trial were sufficient to sustain these findings. Indeed, if necessary, we must assume that they were sufficient to sustain any additional findings required to support the conclusions of law not in conflict with the affirmative facts found;’ and he cited Kellogg v. Thompson and Murray v. Marshall, but did not refer to Stoddard v. Whiting. But he did not assume any facts not found, as he concluded his opinion as follows: ‘We think his findings of fact justified his conclusions of law, and for that reason the judgment of the general term should be affirmed.’

This brief review of the cases in this court shows that...