r. Failure to specify the relief granted. If the judge fail to specify the relief granted, or the determination of the action, this irregularity may be taken advantage of, on appeal. Chamberlain v. Dempsey, 14 Abb. 241; S. C. 9 Bosw. 212. The judgment will be reversed, unless the statement of facts support the conclusion of law. Ib. 8. The facts must be stated.-No fact is or can be implied from the conclusions of law; they follow as the result of the facts separately stated. Tomlinson v. Mayor, etc. of New York, 23 How. 455. But it has been held that it is not error to omit to state even material facts in the decision, for the court on appeal will presume the facts necessary to sustain a verdict. McKeon v. See, 4 Rob. 449. t. Example of improper statement. This case is instructive as to how the statement of facts should be made; in it, the court refused to render the judgment, because of the insufficiency of the statement of the facts. Rogers v. Beard, 20 How. 98, 282. See, also, Sinclair v. Tallmadge, 35 Barb. 602. u. Conflicting testimony-credibility of witnesses.—Where an issue is tried by a court without a jury, the refusal by such court to consider the testimony as conflicting, or to pass upon the credibility of witnesses, is not a question reviewable in the court of highest resort. To do so, would open to review there the details of the evidence in all cases Terry v. Wheeler, 25 N. Y. (11 Smith), 524. v. Mode of obtaining review.-The | only mode of obtaining a review of any decision rendered on a trial by a judge without a jury, whether during its progress or at its close, is by an appeal under § 348 of the Code. Mallory v. Wood, 14 How 67; S. C. 3 Abb. 371, sub nom. Malloy v. Wood; Watson v. Scriven, 7 How. 10; Wright v. Delafield, 11 id. 466; Hunt v. Bloomer, 12 id. 567; S. C. 13 N. Y. (3 Kern.), 341. w. Appeal dismissed unless a finding of facts.-The general term will not hear an appeal from the judgment, and will dismiss such appeal unless there is a finding of facts by the justice who tried the cause incorporated in the case. This is the rule, unless before the cause is submitted, the parties are willing to consent that it be sent back for correction. Matthews v. Mayor, etc. of New York, 14 Abb. 209, 214. x. Presumption in favor of decision, on appeal.-Where a judgment after a trial by the court comes up for review, without any finding of facts, nothing will be presumed against the correctness of the decision, but the presumption will always be in favor of the decision rendered. Viele v. Troy and Boston Railroad Co. 20 N. Y. (6 Smith), 184; M'Keon v. See, 4 Rob. 449. § 268. [223.] (Am'd 1851, 1852, 1860, 1867, 1869.) Exceptions, how and when taken. For the purposes of an appeal either party may except to a decision on a matter of law arising upon such trial within ten days after notice in writing of the judgment, in the same manner and with the same effect as upon a trial by jury, provided, however, that where the decision filed under section 267 does not authorize a final judgment, but directs further proceedings before a referee or otherwise, either party may move for a new trial at general term, and for that purpose may, within ten days after notice of the decision being filed, except thereto, and make a case or exceptions, as above provided in case of an appeal. And either party desiring a review upon the evidence appearing on the trial, either of the questions of fact or of law, may, at any time within ten days after notice of the judgment, or within such time as may be prescribed by the rules of the court, make a case or exceptions in like manner as upon a trial by jury, except that the judge, in settling the case, must briefly specify the facts found by him and his conclusions of law. But the questions, whether of fact or of law, arising upon the trial, can only be reviewed in the manner prescribed by this section, the questions of law in every stage of the appeal, and the questions of fact upon the appeal to the general term of the same court, as prescribed in section 348. No finding of facts by the general term shall be required for the purpose of review in the court of appeals, and if the judgment be reversed at the general term, it shall not be deemed to have been reversed on questions of fact, unless so stated in the judgment of reversal; and in that case the question whether the judgment should have been reversed, either upon questions of fact or of law, shall be open to review by the court of appeals. And for the purposes of an appeal from a judgment rendered on a report of a referee, or the decision of a judge on a trial without a jury, it shall not be necessary to insert at large in the case the findings of fact or conclusions of law of such judge or referee, or the exceptions thereto filed, but if the same appear as part of the judgment roll they may be referred to and used on the argument of the appeal with the same effect as though inserted in the case. The provisions of this section, and also of section 272, as they are hereby amended, shall apply to appeals now pending, as well as to those hereafter brought. I. JUDGMENT HOW REVIEWED. a. What the case must show on appeal.-In order that the refusal of the court below to find a fact, may be brought before the court of appeals for review, the case must show an offer of the evidence, or Refusal to admit it, and an exception to the ruling of the court thereon. Casler v. Shipman, 35 N. Y. (8 Tiff.), 533. b. Settlement of case on review. Where there has been a trial by the court without a jury, and a party wishes to review the judgment, a case must always be made. It is essential that this case should contain the facts found by the judge, and his conclusions of law. These must be stated separately; the exceptions taken during the trial, as well as those taken after judgment, to his final conclusions of law. When any finding on a question of fact is sought to be reviewed at a general term, the case must contain the evidence bearing upon such question. The judge who tried the cause should settle the case, and it should be prepared and amended before him. All decisions which are deemed erroneous, made by the judge during the trial, must be excepted to at the trial; it is too late to do so after judgment. The exceptions which may and should be made within ten days after the notice of the judgment, are to the final conclusions of the judge. If the proposed case and exceptions are served within ten days. after notice of the judgment, this will be a sufficient exception to the final decision of the judge. In order to authorize exceptions to the final decision of the judge, to be inserted in the case, they must be served within ten days. On appeal, exceptions which appear in the case as settled, will be assumed to have been duly taken. The appeal will be dis missed where the case does not contain exceptions taken during the trial, or after the judgment; and in such a case it will not be heard in the court of highest resort. Hunt v. Bloomer, 12 How. 567; S. C. 13 N. Y. (3 Kern.), 341; Johnson v. Whitlock, id. 344; S. C. 12 How. 571. c. Practice under § 268.-In a note to People v. Albany and Susquehanna Railroad Co. 57 Barb. 210 to 217, Mr. Moak has dişcussed very fully and in a learned manner, the entire mode of preparing and presenting questions for review. The earlier practice under section 268 of the Code, is considered in Gilchrist v. Stevenson, 7 How. 274. II. EXCEPTIONS. a. Best form.-A general exception to all the conclusions of law is sufficient, upon a trial by a judge without a jury. But the better practice is to put in an exception to each and every refusal of the judge to hold as requested, and to each of his conclusions upon the law execepted to. No exception need be taken to conclusions of fact. Magie v. Baker, 14 N. Y. (4 Kern. ), 435. b. Referee's decision.-Where there is no exception taken to the decision of the referee, the court cannot, on appeal, review it. The practice under this section (268) in respect to exceptions stated. Brewer v. Isish, 12 How. 481. c. Proper form of an exception.An exception must be direct to the very point in question, and must be express. They may be all grouped in a single sentence; but in order to be available, they must at least, be mentioned as exceptions, be taken at the proper time, and plainly applied by the bill to the points raised. Willard v. Warren, 17 Wend. 257. ed to be raised was brought to the notice of the court. This is the rule, unless it is of a nature so obvious as to require no specification. Walsh v. Washington Marine Insurance Co. 32 N. Y. (5 Tiff.), 427. d. Waiver of exceptions.-The declaration of a witness was offered in evidence by the defendant, and the evidence was admitted by the justice, although the plaintiff excepted. The plaintiff himself afterwards introduced the same witness: held, that he did not waive his objection to the evidence excepted to, by the introduction of the witness. Worrall v. Par-ceedings. The legal presumption is always melee, 1 N. Y. (1 Comst.), 519. The defendant does not, by a cross-examination, lose the benefit of an exception duly taken. He has the right to test the correctness of testimony after exception. Duff v. Lyon, 1 E. D. Smith, 536. Where a party who had taken exception to the decision, excluding proof of the admissions of a third party, and who afterwards introduced as a witness the same third party himself, and fully examined him on the whole case, this was held by the supreme court to be a waiver of the exception. Westlake v. St. Lawrence County Mutual Insurance Co. 14 Barb. 206. e. Printed points.-Where, pursuant to Rule 43, new Rule 50, of the supreme court, a case is submitted upon printed points (such rule requiring the appellant to furnish to the court, with the other necessary papers, a printed copy of the points, on which he intends to rely), if, in such points, there is an entire omission to allude to an exception which was duly taken on the trial, it will be a waiver of such exception. Mayor, etc. of New York v. Hamilton Fire Insurance Co. 10 Bosw. 537; S. C. Aff'd, 39 N. Y. (12 Tiff.), 45; S. C. 6 Trans App. 244. All exceptions not noticed in the counsel's points, and which are not mentioned in his argument, are deemed to have been waived. Cumings v. Morris, 3 Bosw. 560; S. C. Aff'd, 25 N. Y. (11 Smith), 625, sub nom. Cummings v. Morris. See, also, Enos v. Eigenbrodt, 32 N. Y. (5 Tiff.), 444; Philbin v. Patrick, 6 Abb. N. S. 284; Rigney v. Savory. id. (n.) j. Presumption in favor of proin favor of the rectitude of the proceedings; and all decisions made will be presumed correct, until the contrary is made to appear. Therefore, a party excepting must, at his peril, place enough in his exceptions, at least, to show that the court erred to his prejudice Van Amringe v. Barnett, 8 Bosw. 357; Marco v. Liverpool and London Insurance Co. 35 N. Y. (8 Tiff.), 664; Baldwin v. Van Deusen, 38 N. Y. (10 Tiff.), 487. k. The precise error must be pointed out. Where an exception is taken to a part of the charge of a judge, it presents for consideration only the legal proposition which the part excepted to affirms. Varnum v. Taylor, 10 Bosw. 148. Thus, it has been held that a general exception to a mixed question whether the fact found is sustained by the of law and fact does not raise the question evidence. People ex rel. Martin v. Albright, 14 Abb. 305; S. C. 23 How. 306. See Belknap v. Sealey, 14 N. Y. (4 Kern.), 143 ; Aff’g S. C. 2 Duer. 570. 1. Disregarding exception.-An exception to incompetent evidence cannot be disregarded, simply on the ground that the evidence must have been harmless, except in very clear cases. Weber v. Kingsland, 8 Bosw. 415. m. Unless exceptions, no review.The court of appeals cannot review a case, if it contains no exceptions. Douglass v. Day, 3 Keyes, 434; S. C. 2 Trans. App. 190; Bank of Auburn v. Putnam, 3 Keyes, 343; S. C. 1 Trans. App. 322. n. Memorandum attached to case. f. General exception.-Where a gen- A memorandum, stating that either party is at eral exception is taken to "each part "of a liberty to turn the case into a bill of excepcharge, it is not available unless every propositions, is of no avail, unless the exceptions have tion of the charge is erroneous. Potter v. Sey- been duly taken. Bissell v. Studley, 3 Keyes, mour, 4 Bosw. 140. See, also, Nevins v. Bay 213. State Steamboat Co. id. 225; Cronk v. Canfield, 31 Barb. 171. g. No ground stated.-An exception will always be disregarded if no ground is stated for it. Valton v. National Fund Life Assurance Co. 20 N. Y. (6 Smith), 32; Elwell v. Dodge, 33 Barb. 336; Renaud v. Peck, 2 Hilt. 137. h. When too late.-If a witness has been allowed to answer a question without objection, an exception subsequently interposed must be disregarded. Cheesebrough v. Taylor, 12 Abb. 227. i. Exception must be specific.-An exception, unless it be to the decision of some definite question of law, properly brought to the notice of the court, will be unavailing. It must appear, in order that the exception may be available, that the precise question intend 0. Exceptions written out and filed, not taken orally.-Exceptions cannot be taken to an omission to find, upon the facts requested to be found, upon a trial by the court without a jury, or a refusal to find upon them, until after a decision has been drawn up by the court. The exceptions must be written out and filed, and not taken orally. McKeon v. See, 4 Rob. 449. p. Dissatisfaction with the settlement of a case.-If either party thinks a referee or judge of the court, in settling exceptions on a case, has made a mistake, and is dissatisfied with the ruling, he may move the court to open the settlement, and also for leave that the referee or judge may reconsider and review such settlement. The question is strictly one of practice. A question not raised at the trial cannot be raised and considered afterward. Lefler v. Field, 50 Barb. 407; S. C. 33 How. 385, sub nom. Leffler v. Field. q. Power of judge or referee.-The provision of subdivision 2 of this section (268) of the Code, does not enlarge, nor was it intended to enlarge, the powers of a judge or referee in settling a case, so as to authorize him to make any new findings of law or of fact. It simply requires him to specify and insert in the case the findings made on the decision of the cause, and such as he is required by section 267 to embrace and insert in his report. Voorhis v. Voorhis, 50 Barb. 123; S. C. Aff'd, on a different point, however, 39 N. Y. (12 Tiff.), 463, sub nom. Voorhees v. Voorhees; Nelson v. Ingersoll, 27 How. 1.. r. Material facts found wholly without evidence.-Where the judge or a referee finds a material fact, which is wholly without evidence to sustain it, it is an error of law, and upon due exception thereto, may be reviewed in the court of appeals. Semble, that the rule is the same in a case where there has been a refusal to find a material fact proved by uncontroverted evidence. Mason v. Lord, 40 N. Y. (1 Hand), 477. But it is sufficient to sustain the finding of a judge, that there was some evidence to warrant it. Bruyn v. Comstock, 56 Barb. 9. 8. Order reversing judgment and directing new trial.-Where the general term makes an order reversing judgment and directing a new trial, upon questions of both fact and law, it is the duty of the court, upon an appeal from such order, under this section of the Code, to determine whether it was correctly made on either ground. Coleman v. Second Avenue Railroad Co. 38 N. Y. (11 Tiff.), 202; S. C. 6 Trans. App. 146; Aff'g S. C. 48 Barb. 371; Marco v. Liverpool and London Fire and Life Insurance Co. 35 N. Y. (8 Tiff.), 664. t. Reversal on question of fact.Where an order of reversal is made at the general term, the court of appeals cannot assume that such reversal was made on questions of fact, unless it is so stated in the order of reversal; nor will the latter court send back the case to be amended in that respect. Thompson v. Menck, 2 Keyes, 82; Bradley v. Aldrich, 40 N. Y. (1 Hand), 504; Van Blarcom v. Broadway Bank, 5 Trans. App. 132; S. C. 37 N. Y. (10 Tiff.), 540; Aff'g S. C. 9 Bosw. 532. See Lobdell v. Lobdell, 36 N. Y. (9 Tiff.), 327; S. C. 2 Trans. App. 363; 33 How. 347; 4 Abb. N. S. 56; Rev'g S. C. 32 How. 1. But this rule does not apply to orders on special motions upon affidavits. Williams v. Hernon, 33 How. 241; S. C. 3 Keyes, 99. On appeal from an order refusing a new trial, questions of law only can arise. East River Bank v. Kennedy, 4 Keyes, 279. u. No exceptions taken.-Where the the only exceptions taken in the case relate to matters of fact, there is nothing whatever brought up for the court to review, according to the well settled rules of practice. That | is to say, that if there are no exceptions to any questions of law contained in the case as settled, nor an allusion to any as having been taken at any time, with the exception of those mentioned, no question is presented for review. Weed v. New York and Harlem Railroad Co. 29 N. Y. (2 Tiff.), 616; Mayor, etc. of New York v. Erben, 38 N. Y. (11 Tiff.), 305; S. C. 35 How. 644; Aff'g S. Č. 10 Bosw. 189; 24 How. 358. v. Power of review.-In a case where the judge has heard the evidence of both sides, and on the ground that the plaintiff has misconceived his remedy, orders judgment for the defendant, such judgment cannot be reviewed by the court of appeals. Bridger v. Weeks, 30 N. Y. (3 Tiff.), 328. w. No finding of facts-Where the case made contains no finding of facts, the defendant is not entitled to be heard on his appeal. Leland v. Cameron, 31 N. Y. (4 Tiff.), 120. This decision merely adds to a chain of others to the same effect in the court of highest resort. See Otis v. Spencer, 16 N. Y. (2 Smith), 610; Westcott v. Thompson, id. 613; Titus v. Orvis, id. 617; Johnson v. Whitlock, 13 N. Y. (3 Kern.), 344; Viele v. Troy and Boston Railroad Co. 20 N. Y. (6 Smith), 184; Doty v. Carolus, 31 N. Y. (4 Tiff.), 547; Essex County Bank v. Russell, 29 N. Y. (2 Titf.), 681. x. Submission of the cause for decision.-Where the general term of the supreme court, on a regular call of a cause on the calendar, take a submission of the cause for decision from the plaintiff's attorney, he not desiring to take the default of the defendant, his attorney not appearing, an order that the defendant's attorney have notice of such submission, and permission to submit his points, which submission is not made by the defendant during the term, although regularly notified by the plaintiff's attorney in pursuance of such order, a subsequent general term of the court cannot, by calling such submission a default, and on motion of the defendant, set aside such submission and grant an order for a new trial. Bolles v. Duff, 55 Barb. 313; S. C. 38 How. 492; 7 Abb. N. S. 385, 390. See, also, 38 How. 504; 55 Barb. 580; 7 Abb. N. S. 385. y. Time for serving exceptions to conclusions of law.-Exceptions to conclusions of law will be too late, unless they they are served within the time fixed by the Code. This is the rule, unless they are included within a case served within that time; and extending the time to make a case alone, does not extend the time to make exceptions also, beyond the time so fixed. Hatch v. Fogerty, 7 Rob. 488; Beach v. Gregory, 3 Abb. 78; S. C. 1 Hilt. 201, sub nom. Beach v. Raymond; Aff'g S. C. 2 Abb. 203. See Salls v. Butler, 27 How. 133. z. Extension of time.-The time to make exceptions may be extended, and an order will be granted to file them nunc pro tunc, in a proper case. Coe v. Coe, 14 Abb. 86; S. C. 37 Barb. 232; Bortle v. Mellen, 14 Abb. 228; Sheldon v. Wood, 14 How. 18; S. C. 6 Duer, 679. Facts at general term.—If the find § 269. [224.] (Am'd 1849, 1851.) of law. ings of fact established at general term differ from those found by the referee, they must be contained in the case on appeal to the court of appeals. Smith v. Grant, 17 How. 381. Proceedings upon judgment on issue On a judgment for the plaintiff upon an issue of law, the plaintiff may proceed in the manner prescribed by the first two subdivisions of section 246, upon the failure of the defendant to answer, where the summons was personally served. If judgment be for the defendant, upon an issue of law, and if taking of an account, or the proof of any fact, be necessary to enable the court to complete the judgment, a reference or assessment by jury may be ordered, as in that section provided. § 270. [225.] All issues referable by consent. All or any of the issues in the action, whether of fact or of law, or both, may be referred, upon the written consent of the parties. a. Consent in writing, when necessary. A consent in writing is necessary to refer issues in all cases in which the court may not compel a reference, and hence a written consent is just as necessary to a valid reference under the Code, as to a valid reference under the statutes relating to the reference of the claims against executors and administrators. Bucklin v. Chapin, 35 How. 155, 160; S. C 53 Barb. 488. b. Consent in writing may be waived. The consent in writing may be waived, and the agreement to refer may be made in open court. As to the power to waive the requirement, see Leaycroft v. Fowler, 7 How. 259; Keator v. Ulster and Delaware Plank Road Co. id. 41; Baker v. Braman, 6 Hill, 47; Lee v. Tillotson, 24 Wend. 337; People v. Murray, 5 Hill, 468; Embury v. Conner, 3 N. Y. (3 Comst.), 511. c. Irregularities.- Proceedings upon a reference is a waiver of all objections, because of irregularities. Garcie v. Sheldon, 3 Barb. 232; Quinn v. Lloyd, 7 Rob. 157. d. Entering order, nunc pro tunc. In this case the action was for slander, for words spoken in reference to the evidence of a plaintiff in an action tried before a referee. No order of reference had been entered, and was not until some two months after trial, when one was entered nunc pro tunc. Bonner v. McPhail, 31 Barb. 106. On the above three heads, see Bucklin v. Chapin, 35 How. 155; S. C. 53 Barb. 488. e. Example of sufficient consent.The written consent required by this section of the Code, to refer an action for divorce, is sufficiently made, and the statute complied with, where an order of reference is drawn by the attorney for one of the parties and submitted to and approved by the attorney of the other party, and which recited as follows: "Upon the consent of the attorneys for each of the above parties given in open court, it is ordered that this action be and the same is hereby referred," etc. Waterman v. Waterman, 37 How. 36. Consent entered in the minutes of the court is sufficient. Leaycroft v. Fowler, 7 How. 259. f. In action for divorce, order cannot be granted by consent.-The court is not at liberty to divest itself of its obligations as the guardian of the rights of married women, so far as to delegate the trial to others. An order of reference "to try and determine the issues" in an action for divorce cannot be granted, even by consent. Simmons v. Simmons, 3 Rob. 642.' |