
    David M. Koehler, App’lt, v. Joseph Hughes, Impleaded, etc., Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 17, 1893.)
    
    Appeal—Case.
    A statement that the case contains all the testimony is not equivalent to the statement that it contains all the evidence.
    Appeal from a judgment dismissing the complaint on the merits.
    
      Chas. Ooldzier (David McClure of counsel), for app’lt; Johnston & Johnston (Edward W. S'. Johnston, of counsel), for resp’t.
   Parker, J.

This suit has for its object the subrogation of the plaintiff to the rights acquired by a purchaser, at a tax sale, of certain real estate, alleged to have been held by the defendants, Henry and Joseph Hughes, as tenants in common. Plaintiff, claiming an undivided interest in the premises, either as grantee or mortgagee of Henry Hughes, redeemed them after sale. The defendant Joseph Hughes refused to- repay to the plaintiff any portion of the money thus paid out by him, and the plaintiff thereupon asserted the right to be subrogated as to the rights of the purchaser at the tax sale, and to have the lien enforced for his benefit. If plaintiff’s contention as to his ownership of an undivided interest in the premises were established by the record, the question would be presented whether the payment by the plaintiff in order to redeem the property was a voluntary payment. Were it a voluntary payment, plaintiff would, of course, be without redress. That question could only be answered by an examination of the provisions of the consolidation act, in order to ascertain whether they authorize the owner of an undivided interest to redeem by paying such a proportion of the taxes as his interest bears to the entire estate. But respondent makes the point that we cannot reach that question, because the trial court refused to find, and the record prevents us from determining, that plaintiff has or ever had an interest in the property. An examination of the findings does not disclose any to the effect that the plaintiff had or has an interest in the property as grantee, mortgagee, or otherwise. Plaintiff requested findings of fact which, if found, would have established that he had an interest in the premises which he would be entitled to protect, but every one of such proposed findings was refused. The learned trial judge explains his refusal to find in the closing paragraph of his opinion, but the explanation does not help the situation at all, as the findings and refusals to find must stand, unless we can determine that he erred in such respect. In attempting the consideration of that question, we are confronted with the objection that the record does not contain a statement “ that the case contains all the evidence adduced on the trial.” At folio 165 there is a statement by the attorney for the appellant “ that this case contains all the testimony adduced at the trial.” Under the decisions in Hyman v. Friedman, 18 N. Y. Supp., 446: 45 St. Rep., 636; and Upington v. Pooler, 19 N. Y. Supp., 428; 47 St. Rep., 30, the .statement that a case contains all the testimony is notan equivalent of the statement that the case contains all the evidence. That being so, the general term is precluded from reviewing the questions of fact. Aldridge v. Aldridge, 120 N. Y., 614-616; 31 St. Rep., 948. Hence there is no question for decision.

The judgment "should be affirmed with-costs.

All concur.  