
    Simonson v. Krollpfeiffer.
    
      (Supreme Court, General Term, Second Department.
    
    July 2, 1889.)
    1. Appeal—Weight of Evidence.
    Where two juries have rendered verdicts in favor of plaintiff, the last verdict will not be disturbed, though the evidence is conflicting.
    3. Same—Record.
    Where the case does not contain a certificate that it embodies all the evidence given on the trial, it will be presumed that there was sufficient proof to sustain the verdict.
    Appeal from Kings county court.
    Isaac 0. Simonson sued Anna C. Krollpfeiffer in a justice’s court for commission as real-estate broker, and obtained judgment, which was'appealed to the county court, where judgment on a verdict was rendered for plaintiff, und defendant appealed.
    Argued before Barnard, P. J., and Dykman and Pratt, J.T.
    
      John J. Leary, for appellant. Horace Graves, for respondent.
   Pratt, J.

The evidence is conflicting, but two juries have passed upon it favorably to the plaintiff, and, under such circumstances, the verdict should not be disturbed. If any doubt remained in our minds it would be removed by the fact that the-case contains no certificate that it embodies all the testimony given upon the trial. The practice has been settled for many years that it must affirmatively appear that all the evidence is returned, or the court will infer that testimony was given upon the trial which would support the verdict on conclusions of fact. If the object of the appellant be merely to review questions of law, it might be sufficient to set out so.much of the evidence as will show the supposed error. And the respondent has a right to assume that only questions of law are intended to be raised by the appeal, unless he is notified to the contrary, in the appropriate method. This rule has been applied for so long a time (see Cheney v. Railroad Co., 16 Hun, 415) that to hold otherwise would be liable to work surprise, and cause judgments to be reversed for supposed defects in proof that do not exist in fact. The presumption that the judgment is based upon sufficient evidence must prevail unless the contrary is distinctly made to appear. Judgment affirmed, with costs.  