
    James McGovern, Resp’t, v. Jean M. Eldredge, Impl’d, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed November 7, 1892.)
    
    1. Distbict coubts—Omission of evidence in return.
    A judgment of a district court of New York cannot be reversed on appeal, on the alleged ground that it is without evidence to support it, or that it is against the evidence, or the weight of evidence, if it affirmatively appears from the justice’s return that material evidence adduced on the trial is omitted, and that the respondent could not have caused the omission to be supplied by means of an amended return.
    
      H. Same.
    In such case, appellant should make application on the argument of the appeal, under §§ 3056 and 3213 of the Code, to be allowed to establish the lost evidence by affidavits or the examination of witnesses.
    Appeal from a judgment for plaintiff recovered in the district ■court in the city of New York for the ninth judicial district Action by sub-contractor against owner and contractor for the foreclosure" of a mechanic’s lien claimed under the provisions of chapter 342, Laws 1885, the defense of the owner being payment to the contractor in full before notice of plaintiff’s lien was filed, •and that the defendant contractor had not fully and substantially performed the agreement with the owner.
    
      Sweeney & Cromwell, for respt’s; M. Cleiland Minor, for app’lt.
   Bischoff, J.

We cannot reverse a. judgment of a district court on the alleged ground that it is without evidence to support it, or that it is against the evidence, or the weight of the evidence, if it affirmatively appears from the justice’s return that material evidence adduced on the trial is omitted, and that respondent could not have caused the omission to be supplied by means of an amended return.

Ou the trial plaintiff’s notice of lien, the agreement entered into Between defendant Eldredge as owner, and defendant Lum as contractor, for alterations to the farmer’s premises, and the specifications referred to in and made a part of the agreement, were received in evidence, and their relevancy, materiality and competency thereby conceded. The trial justice’s return, however, .states that these exhibits are not therein included, because they have been lost. We have no means therefore of knowing their •contents. The evidence omitted may be conclusive of plaintiff’s right to recover; the judgment is presumptively valid until the contrary is shown, and the burden of doing so rests upon the party claiming to be aggrieved by the judgment. In urging the evidence presented by the return as proof of its insufficiency, appellant is at the same time compelled to concede that other material evidence is withheld. The judgment is therefore still supported by the presumption that the evidence withheld was sufficient, and this presumption must be overcome by the apparent insufficiency of the evidence when it is produced.

Section 3056 of the Code of Civil Procedure, referring to appeals from judgments of the justices’ courts, provides that if for any reason the justice is unable to make a return, “ the appellate court may receive affidavits, or examine witnesses, as to the evidence and other proceedings taken, and the judgment rendered before the justice; and may determine the appeal as if a return had been duly made by the justice ; ” and by § 3213 the foregoing provis-ons are made equally applicable to appeals from the district courts in the city of New York. Clark v. Carroll, 61 How. Pr, 47. Had appellant on the argument of this appeal made application to that effect, it is probable that permission would have been given to the parties to establish the contents of the lost exhibits by secondary evidence, and by means of it we would have been enabled to dispose of the questions urged on behalf of the appellant for reversal. As it is the judgment must be affirmed.

Judgment affirmed, with costs.

Pryor, J., concurs.'  