
    James S. Manning, Respondent, v. Charles G. West et al., Appellants.
    (Supreme Court, Appellate Term,
    February, 1897.)
    1. Appeal — Opinion of court below not available.
    . The opinion of the court below cannot be resorted to as ground of reversal, unless the judgment appealed from in express terms makes the opinion part of the record.
    
      2. Same — Weight of evidence.
    The General Term of the court in which the trial was had1 has power to order a new trial if, in its opinion, the judgment was contrary to the evidence, whether exceptions were taken or not.
    3. Same — Facts cannot be reviewed by appellate court.
    The Appellate Term has no power, upon an appeal from an affirmance by the General Term of the City Court, to review the facts.
    Manning v. West, 18 Mise. Rep. 578,’ affirmed.
    Appeal by defendants from affirmance by the City Court, Gem eral Term, of a judgment in favor of plaintiff.
    Cantor & Van Sehaick (Eugene Yarn Sehaick and Eliot Norton, of counsel), for appellants.
    Adelbert E. Carroll, for respondent.
   MgAdam, J.

The action is to recover the purchase price of an Otto gas engine, sold and delivered by the plaintiff to the defendants in or about June, 1891. The defense is that, the engine was not properly constructed, and that the plaintiff did not fully perform his part of the contract;

The questions of 'fact arising under the issues were submitted to the jury, and they found adversely to- the defendants.

The General Term affirmed the judgment, and because, in the opinion filed, reference is incidentally made to the omission of any request to dismiss the complaint when the. plaintiff rested and on the close- of the casé, or of any exception to the charge, the appellants argue that the General Term decided that it had no power to reyerte in the absence of such motion or exception, and apparently assume that if such motion had been made or exception taken, the General Term, by necessary inference, would have, reversed the judgment. The, opinion permits of no such inference, and if it did, "could not be resorted to by an appellant as ground of reversal unless the judgment appealed from in express terms made, the opinion part of the record, which is not so here. Koehler v. Hughes, 148 N. Y. 507; Randall v. N. Y. E. R. R. Co., 149 id. 211; Dibble v. Dimick, 143 id. 549, 555.

The appellants are quite right when .they say that the General Term had power to review the judgment on appeal, and to order a new trial if, in its opinion, the judgment was contrary to the evidence,, whether exceptions were taken or not. Wehle v. Haviland, 42 How. Pr. 399; Kelly v. Frazier, 2 Civ. Pro. 322; Macy v. Wheeler, 30 N. Y. 231; Barrett v. Third Ave. R. R. Co., 45 id. 628, 632; Hamilton v. Third Ave. R. R. Co., 53 id. 25; Smith v. Aetna Ins. Co., 49 id. 211; Schwinger v. Raymond, 105 id. 648.

In Hamilton v. Third Avenue R. R. Co., supra, the court said: “ The Special Term upon the motion, and the General Term upon the. appeal from its order, had the power, and it was the duty of each to examine and determine whether the verdict was against the weight of evidence and the justice of the case, and..if of opinion that.it was, to set it aside and order a new trial.”

In Smith v. Aetna Insurance Co., supra, the court (at p. 216) aptly said that justice would be promoted if the court below should more frequently exercise its unquestioned right of reviewing verdicts upon the facts.

. The court in Kaare v. Troy Steel & Iron Co., 139 N. Y. 369, was emphatically of the opinion that the General Term, on appeal from an order denying a motion for a new trial, should not affirm the order simply out of deference to the trial judge, but should exercise an independent judgment and grant a "new trial in a proper case if the verdict is against the weight of evidence, or otherwise the right of appeal, secured by the Code, is of very little value. See, also, Nutting v. Railroad Co., 91 Hun, 258; Bosko v. Railroad Co., id. 320, 323.

The difficulty with the appellants’ argument is that there is nothing in the record which affirmatively establishes that the General Term failed to perform its full duty; and inferentially at least it was fully performed. If by the record it affirmatively appeared that the General Term had neglected to review the evidence, or had held that it was without power to do so in the absence of exceptions, a new trial would not necessarily follow,, as the case would be remanded to the General Term for a proper hearing. All that occurs during a trial and which is made matter of record is open to inspection and review by the court in which the proceedings were had: It is otherwise when the record passes from the General Term of that court and comes before an appellate tribunal having jurisdiction to review judgments and grant new trials only for errors of law raised by exceptions taken in proper form and at the right time. Standard Oil Co. v. Amazon Ins. Co., 79 N. Y. 506, 510; Ebenreiter v. Dahlman, 19 Misc. Rep. 9; Briscoe v. Litt, id. 5.

As we cannot review the facts (Rowe v. Comley, 11 Daly, 317, 318), and the exceptions to the admission and exclusion of evidence . are without. merit, the judgment must' be affirmed, with •costs.

- Daly, P. J., and Bischoff, J., concur.

Judgment affirmed, with costs.  