ORDERED,* that said [judgment] so appealed from be and the same is hereby in all things affirmed, with costs to the respondent [or, if an appeal from an order, with ten dollars costs and disbursements.] [For special clauses, see following Forms.] Enter: [signature of presiding judge by initials of name and title.] fendant has moved for a dismissal of the complaint. Perez v. Sandrowitz, 180 N. Y. 397. The court has not unanimously affirmed if one judge dissents because the verdict is excessive (Clark r. Brooklyn Heights R. Co., 174 N. Y. 523), or if one of the jus tices sitting did not vote (Warn v. N. Y. C. & H. R. R. R. Co., 163 id. 525). The jurisdiction of the Court of Appeals, upon appeal from an unanimous affirmance by the Appellate Division, may be briefly stated as follows: From a judgment entered upon the verdict of a jury, the court is required to assume that there was evidence of such a character as to justify the submission to the jury of the dis puted questions. Meserole r. Hoyt, 161 N. Y. 59. The rule is the same in the cases where an appeal is allowed. Kleiner v. Third Ave. R. Co., 102 id. 193. After trial by court, or referee, the court may only consider whether the facts found justify the conclusions of law. McManus v. McManus, 179 N. Y. 338; Ide v. Brown, 178 id. 26. An exception to a finding of fact presents no question. McManus v. McManus, supra. The court will not examine the record either (a) to find whether there are facts not found which rest upon undisputed evidence (Keyes v. Smith, 183 N. Y. 376), or (b) to find whether there are facts found which are unsupported by any evidence, or which are against the evidence. (Keyes v. Smith, supra; Genet v. Del. & Hud. C. Co., 167 id. 608.) In other words, the court must assume that the findings are true, and express the whole truth. Hay v. Knauth, 169 N. Y. 298; Hilton t. Ernst, 161 id. 226. The court will, however, consider facts admitted by the pleadings, in addition to the facts found by the trial court. Jacobson v. Brooklyn Lumber Co., 184 N. Y. 152. Upon any appeal, if there is no evidence, except that which the Court of Appeals holds incompetent, to sustain the findings or verdict, a reversal will follow. See Hindley v. Manhattan R. Co., 185 N. Y. 335. If the affirmance by the Appellate Division was not unanimous, the Court of Appeals may: On appeal from a judgment entered on a verdict, review the question whether the verdict is supported by any evidence. King r. Village of Fort Ann, 180 N. Y. 496. But the verdict is conclusive if there is any evidence to sustain it. Chainless Cycle Co. v. Sec. Ins. Co., 169 N. Y. 304. In a negligence case (for example) two ques tions are presented upon defendant's appeal: (1) Whether there was any proof of the defendant's negligenc", and (2) whether it was competent for the jury to find from the evidence that plaintiff was free from contributory negligence. Kane v. Yonkers, 169 N. Y. 392. After trial by court or referee, the court may consider whether there was any evidence to support a finding of fact. Ostrom v. Greene, 161 N. Y. 353; Hawkins v. Mapes-Reeve Const. Co., 178 id. 236. The findings are conclusive if not without support in the evidence. Nat. Bank of Deposit v. Rogers, 166 N. Y. 380. Exceptions to refusals to find, where evidence is uncontradicted, may be reviewed. Arnot r. Union Salt Co., 186 N. Y. 501. A party is entitled to a recital that the decision was unanimous, or otherwise; or that it was not participated in by all of the justices who heard the appeal. See Ricketts v. Ramsdell, 112 App. Div. 919. FORMS NOS 2124-2128.- STATEMENTS SUITABLE TO INSERT IN FORE GOING FORM. FORM No. 2124. Order for judgment absolute. 92 [If the appeal was from an order granting a new trial on a case or exceptions, to the Court of Appeals, or allowed by the Appellate Term to be taken to the Appellate Division, add at end of Form 2123:] And it appearing to the court that the appellant has stipulated for the entry of judgment absolute against him upon the affirmance of said order, it is further ordered that judgment absolute be rendered against him in favor of the respondent. FORM No. 2125. Affirmance nunc pro tunc after death of party after argument.93 [Add at end of Form 2123:] And J. L. B., one of the plaintiffs, having died since the argument of said appeal: It is hereby further ordered, that this order be entered and filed nunc pro tunc, as of 19, the day of such argu ment. FORM No. 2126. Further direction to prevent lapse of order affirmed.94 [As thus:] That said order be affirmed [so far as it directs the appellant to appear before a referee and be examined and answer on oath concerning his property], and that the said defendant be required to appear before such referee at such time and place as shall be fixed for that purpose by the county judge who made said order. FORM No. 2127. And it is further ordered, that the plaintiffs and the defendant Y. Z. do each recover their costs of this appeal; and, also, that one bill of costs be allowed to each of the following attorneys, viz.: [names;] costs to be taxed by the clerk and paid by the executors out of the estate. 92 Code Civ. Pro., § 3191. 93 Sustained in Bergen v. Wyckoff, 84 N. Y. 659; see N. Y. Code Civ. Pro., § 762. 94 Gaylord v. Jones, 7 Hun, 480. 95 Or the Appellate Division will make a new direction as to the time for the examination. FORM No. 2128. Recital of continuance in name of representative pending appeal.96 [Insert:] And the said A. B., having died since the entry of said judgment, and an order having been made on the day of 19 that said action be continued by C. B., the FORM No. 2129. the deceased Order of Appellate Division modifying judgment, and affirming as modified.97 [After recitals as in Form 2123:] ORDERED, that the judgment so appealed from be and the same is hereby modified by [insert how, as] by striking out therefrom the allowance made therein to the plaintiff of interest upon the amount of his lien, which interest amounts to the sum of dollars, so that the judgment, as so modified, shall award to the plaintiff altogether the sum of dollars in lieu of the sum of dollars as therein awarded, and that the judgment as so modified shall read as follows: [repeat entire judgment except recitals with modification, if believed desirable.] And it is further ORDERED, that the judgment, as so modified as above, be and the same is hereby affirmed, with costs to the appellant. FORM No. 2130. Judgment upon modification by Appellate Division. [Title of court and cause.] [After appropriate recitals, which can be readily adapted from the judgment of reversal, Form No. 2133:] ORDERED AND ADJUDGED, that the said judgment so appealed from be and hereby is modified by [state in what way, as:] striking out therefrom the allowance therein made to the plaintiff of interest upon the amount of its lien, which interest amounts to the sum of dollars, so that the judgment, as so modified, 96 Compare §§ 1297-1299 with § 765 of the Code of Civ. Pro. 97 Form is from Excelsior Terra Cotta Co. v. Harde, 181 N. Y. 11. The Appellate Division has no power to modify the judgment in such a way as to amount to a partial reversal, and then affirm as modified, unless it appear that the facts are undisputed and cannot be varied upon another trial, or that they are established by official records, or have been specifically found by the jury or trial court. See Dixon v. James, 181 N. Y. 129. A finding contrary to that of the trial court cannot be made. N. Y. Bank Note Co. v. Ham. Bank Note Co., 180 N. Y. 280. It is improper for the Appellate Division to incorporate findings of fact or conclusions of law in its order; the power to formulate the decision upon the issues rests exclusively with the trial court. Cutter v. Gudabrod Bros. Co., 168 N. Y. 512. shall award the plaintiff altogether the sum of dollars, and that the said judgment, as so modified, shall read as follows: [set forth in entirety, except recitals]. And it is further ORDERED AND ADJUDGED, that the judgment as so modified be and the same is hereby affirmed, and that the defendant [name] recover of the plaintiff [name] the sum of dollars, costs as taxed. Judgment, , 19 FORM No. 2131. [Signature], Clerk. Order of Appellate Division, rev ersing a judgment upon errors of law only.98 [Title.] At a term of the Appellate Division [etc., as in Form 820, p. 1175 of this volume]. The above-named defendant [name] having appealed to the Appellate Division of the Supreme Court for the ment from the judgment entered herein on the 19, in the office of the clerk of the county of Depart day of day of for the sum of dollars [and from the order denying the defendant's motion for a new trial entered on the 19], and the said appeal regularly coming on to be heard, and having been argued by Mr. A. T. of counsel [etc., as in Form 2123]; It is hereby ORDERED AND ADJUDGED, that the judgment [and order] so appealed from, be and the same is [are] hereby reversed, and a new trial ordered with costs to the appellant to abide the event," [upon questions of law only, the facts having been examined and no error found therein.1] 98 If the order reversing a judgment fails to show that it was made upon the facts, or upon the law and the facts, it must be presumed to have been made upon the law only, and that the facts as found were approved. Code Civ. Pro., § 1338; Butler v. Wright, 186 N. Y. 259; McArdle r. Germ. All. Ins. Co., 183 N. Y. 368; Burdick r. Burdick, 180 id. 261. This presumption must follow, despite anything that may appear in the opinion of the Appellate Division showing the contrary. Matter of Mosher, 183 N. Y. 568; Hinckel r. Stevens, 165 id. 171. If, however, the order of the Appellate Division reverses not only the judgment entered on a verdict, but also the order denying a motion for a new trial, it is essential to the jurisdiction of the Court of Appeals that the Appellate Division order should state that the order of the Trial Term was affirmed as to the facts, or the appeal therefrom must be dismissed. See Caponigri r. Altieri, 164 N. Y. 476; Allen r. Corn Exch. Bank, 181 id. 278. 99 The event contemplated is one which determines that the successful party is entitled, by law, to costs. People ex rel. Shiels r. Greene, 114 App. Div. 168. See, also, Adams r. Massey, 51 Misc. 230. 1 Where the reversal is based upon questions of law, only, the facts found are conclusive upon the Court of Ap peals; that court may review three questions: (1) whether there was any evidence to support the material find ings excepted to, or to support the FORM No. 2132. Order of Appellate Division reversing judgment upon the facts, or upon the law and the facts.2 [Recitals as in preceding Form, continuing:] ORDERED, that the judgment [and order] so appealed from be and the same is [are] hereby reversed upon the [law and the] facts, and a new trial granted, with costs to the appellant to abide the event.* 3 refusal to direct a verdict; (2) whether the facts found support the judgment awarded; (3) whether a material error was committed in receiving or rejecting evidence, or in charging the jury. See, generally, McClure v. Leaycraft, 183 N. Y. 36; Schultze v. Goodstean, 180 id. 248; Dunlap . Young, 174 id. 327; Nat. Prot. Assoc. v. Cumming, 170 id. 315. Even if errors were committed by the trial judge, they would not sustain a reversal by the Appellate Division upon questions of law only, unless the questions were duly raised by exception; and the Court of Appeals is similarly confined to errors of law to which exceptions have been taken. Vollkommer v. Cody, 177 N. Y. 124. If not based upon errors in rulings at the trial, the order reversing a judgment entered upon a verdict is to be understood as a holding that the Appellate Division, after examining the evidence, has concluded that the jury was justified in accepting as true in all instances of conflict that testimony most favorable to the successful party; and yet that the court could not permit the verdict to stand because a most favorable view of the testimony fell short of supporting the judgment. Albring v. N. Y. C. & H. R. R. R. Co., 174 N. Y. 179. No question of the weight of evidence is reviewable. Fritz v. Tompkins, 168 N. Y. 524. If the bracketed portion is omitted, the Court of Appeals will presume that the reversal was for errors of law only, with the exception noted in the note 98, supra. 2 If both the order of the Appellate Division, and the judgment entered upon the order, are silent as to the grounds of reversal, it must be presumed to have been upon the law alone. Code Civ. Pro., § 1338; But Of ler v. Wright, 186 N. Y. 259. course this declaration as to the ground of reversal can only properly be inserted in the first instance in the Appellate Division order; the clerk on entering judgment would seemingly have no power to insert such a clause unless it was contained in the order. There is one important exception to the rule above stated, viz., when the reversal is both of a judgment entered upon a verdict and of the order denying the motion for a new trial. In such case the presumption cannot be indulged in, and it must affirmatively appear in the order that the Appellate Division has affirmed the facts. Allen v. Corn Exch. Bank, 181 N. Y. 278. 3 Where the Appellate Division reverses upon the law and the facts, or upon the facts, the Court of Appeals has no power to review the order, or the judgment entered thereon, unless it appears that there was no question of fact, or of the credibility of witnesses, or of different inferences to be drawn from the evidence, upon which the reversal could properly have been rested. O'Brien v. Fitzgerald, 180 N. Y. 350; O'Brien v. East River Bridge Co., 161 id. 539; Bini v. Smith, id. 120. In other words, unless it appear as a matter of law that the appellant was entitled to the direction of a verdict in his favor, no question reviewable by the Court of Appeals is presented. Reich v. Dyer, 180 N. Y. 107. But the Appellate Division cannot create a question of fact by the assertion that it reverses upon the facts, when the record shows that in reality there is no dispute of facts. Allen v. Corn Exch. Bank, 181 N. Y. 278; Matter of Totten, 179 id. 112; Erie R. Co. v. Steward, 170 id. 172. 4 If the Court of Appeals finds that |