
    Theodore L. Hermann, Respondent, v. Thomas B. Van Buren, Appellant.
    (New York Common Pleas
    Additional General Term,
    January, 1895.)
    An éxception to the admission of a paper in evidence is not available on appeal from a District Court, where such paper is not included in the return.
    Appeal from a judgment of the District Court in the city of Rew York for the first judicial district.
    Guggenhevmer, Untermyer <& Marshall, for respondent.
    
      Albert Da/y, for appellant.
   Per Ov/riam,.

A certain paper was admitted in evidence against the objection and exception of the defendant, appellant, but is not included in the justice’s return. A motion by the appellant for leave to amend the return by supplying this paper has been denied because not made until after this court had intimated upon the argument its decision upon the questions presented by the return as filed. Warren v. Campbell, 37 N. Y. St. Repr. 762.

The exception is, therefore, ineffectual as, in the absence of the paper, it cannot be determined that it was ipiproperly admitted. The appellant has consequently failed to show error of law and only a question of fact remains to be passed upon, and after a review of the evidence we are confirméd in our opinion, formed and intimated upon the argument, that the facts would not warrant a reversal of the justice’s decision.

Judgment affirmed, with costs. ,

Present: Bookstaveb and Bischoff, JJ.

Judgment affirmed, with costs.  