Rosenstein v. Fox

• Decision Date: 13 October 1896
• Citation: 44 N.E. 1027,150 N.Y. 354
• Parties: ROSENSTEIN v. FOX.
• Court: New York Court of Appeals Court of Appeals

150 N.Y. 354

44 N.E. 1027

ROSENSTEIN

v.FOX.

Court of Appeals of New York.

Oct. 13, 1896.

Appeal from common pleas of New York city and county, general term.

Action by Isaac Rosenstein against Wiliam I. Fox on a promissory note. From a judgment of the general term of the court of common pleas of New York city and county (30 N. Y. Supp. 258) affirming a judgment entered on a verdict in favor of defendant, plaintiff appeals. Reversed.

The action was brought to recover $3,000, with interest from May 27, 1884, on a promissory note made by the defendant, of which the plaintiff claimed to be the owner and holder. The answer consists of a general denial, and affirmative allegations that the note in suit was made for the acccommodation of one Nathan Bernstine, and was given in renewal of a previous usurious note, dated October 27, 1883; that the latter note was made and indorsed by the defendant, and delivered to said Bernstine, for a loan of $3,000, made upon a usurious agreement between the defendant and Bernstine that the former should pay the latter, and that he should reserve and secure to himself, for the loan of the money for which that note was given, a greater sum than at the rate of 6 per cent. per annum, to wit, 17 3/20 per cent., which was received by Bernstine prior to the 27th of May, 1884; that the plaintiff was not the real party in interest, and not a bona fide holder of the note; and that the defendant had paid Bernstine the amount of said note.

Edward W. S. Johnston, for appellant.

Michael A. Quinlan, for respondent.

MARTIN, J. (after stating the facts).

The first question presented upon this appeal is one relating to practice. There is no certificate in the case showing that it contains all the evidence, or all the evidence bearing upon the questions sought to be reviewed. It appears by the opinion of the general term, but not otherwise, that, because of the absence of such a certificate, that court declined to examine the plaintiff's exceptions to the refusal of the trial judge to direct a verdict for the plaintiff, and to the charge submitting to the jury the question of usury. The effect of a statement in the opinion, where neither the judgment of the general term, nor the order upon which it was based, referred to the opinion, so as to make it a part of the judgment or order, was before this court in Koehler v. Hughes, 148 N. Y. 507, 510,42 N. E. 1051. There Judge Vann, who delivered the opinion of the court, said: ‘These opinions form no part of the record, and the statements appearing therein, as to what the respective courts did or did not pass upon, cannot be considered, unless the judgment appealed from so refers to the opinion as to make it a part of the record. * * * Our power to review, according to the practice that has prevailed for many years, is limited to such questions as appear in the record.’ As, in the case at bar, there is nothing in the record to show that the general term did not pass upon the exceptions of the appellant, it must be presumed to have done so, and the question of the correctness of such rulings is presented for our determination.

Moreover, as this case was not tried before a court or referee, section 992 of the Code of Civil Procedure has no application, and has not changed the practice as it existed prior to its adoption, in cases where there was a jury trial. The question of the necessity for such a certificate, after the adoption of the Code of Civil Procedure, first arose in this court in the case of Porter v. Smith, 107 N. Y. 531, 533,14 N. E. 446. In discussing the question in that case it was said: ‘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. 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 look to it that nothing which he deems essential is omitted.’ The doctrine of that case is in harmony with our conclusion upon this subject. There the question arose in a case where the trial was before a referee, and therefore within the provisions of section 992. The decision in that case was based solely upon the provisions of that section, which has no application to a case tried by a jury. The reason given for the rule was that as to cases tried before the court or a referee, by virtue of section 992, no exceptions to findings of fact could be taken, and hence the respondent would have no warning or notice of an intention to review them. No such reason exists where the trial is before a jury, and a ruling is made and an exception taken. In such a case the respondent is given express notice of an intention to review the questions to which the exceptions are directed; and, as was said in the Porter Case, the exception ‘warns the respondent that he must add any omitted fact essential, in his judgment, to sustain the ruling.’ This has long been understood to be the practice, and it is manifest, from the opinion in the Porter Case, that the court had no intention to change the rule, except so far as it became necessary by reason of the adoption of the provision of the Code referred to. The contention of the respondent that the language used in the opinion in that case, to the effect that the situation is radically changed by the provisions of the new Code forbidding exceptions to findings of fact, was intended to relate to all trials, whether by jury or before the court or a referee, cannot be sustained. A reading of the opinion renders it obvious that that statement relates only to cases tried before a court or referee, and that the former practice in cases tried before a jury was not intended to be changed or interfered with. It was held in Halpin v. Insurance Co., 118 N. Y. 165, 23 N. E. 482, that even in a case tried by a court or referee, where there was a finding of fact which was without evidence to support it, it was a ruling of law, which, if excepted to, presented a legal question to be reviewed in the court of appeals, and that under such circumstances it was unnecessary that the case should show that it contained all the evidence, because the exceptions served as a notice to the respondent of an intent to raise the question of legal error, and therefore put upon him the responsibility of adding by amendment any evidence omitted bearing upon the question. In Brayton v. Sherman, 119 N. Y. 623, 23 N. E. 471, it was held that where an appellant intends to review the findings of fact based upon conflicting evidence, in relation to which no exception lies,...