
    YOUNG v. YOUNG.
    
      N. Y. Court of Appeals;
    
    
      May, 1892.
    [Rev’g 18 N. Y. Supp. 116.]
    1. Case ; exceptions.] Requests and refusals to find on a trial without jury, (or exceptions duly taken to such refusals, even though not taken till after judgment) are to be inserted in a case made for the purpose of appeal, and it is error to strike them out on the ground that they form no proper part of the “ case.”
    •2. The satne.'] A successful party seeking to strike out his adversary’s exceptions from the case on appeal, on the ground that they were not duly filed, must show affirmatively that they were not. It is not enough that his adversary’s papers do not show that they were.
    Appeal from an order of the General Term N. Y, Common Pleas affirming an order of the Special Term of that court denying a motion to resettle the-case.
    The action was brought by John W. Young against Sophia Young. It was tried by the court»without a jury, and the defendant obtained judgment. Plaintiff appealed.
    The requests of the parties found by the court were. inserted in the decision. The appellant included in his proposed case certain of his requests for findings and conclusions, which had been refused, and his exceptions to their refusal. On settlement of the case the judge struck out such requests and exceptions stating in writing as his reason, that “ the plaintiff’s requests, while a part of the record upon which the appeal may be heard, form no part of the proposed case and should not appear therein.” Appellant moved to resettle the case in order to .have the part which had been so stricken out restored.
    . The Special Term denied the motion for resettlement without opinion.
    
      The General Term affirmed the order denying the motion on the ground that it appeared from the affidavit in support of the motion that the appellant had only •served his exceptions to the decision upon his adversary, and that it was not shown that such exceptions had been •also filed with the clerk, or that the requirements of Code Civ. Pro. § 994, had been otherwise complied with .[Reported as 18 N. Y. Supp. 116].
    
      Bullard & Shannon, for appellant.
    
      Robert E. Deyo (Deyo, Duer & Bauerdorf, attorneys), for respondent.
    
      
       There is some difference in the voice of the authorities, and in the practice, as to whether relief against a refusal to find in accordance with a request for a specific finding is to be had by excepting. Exception is necessary and proper to a refusal to make any finding whatever upon a question of fact and raises “a question of law.” So does a finding without any evidence to support it (§ 992).
      The only kind of error for which exception is prescribed as a remedy by section 993 is an error on “ a question of law.”
      In Porter v. Smith, 35 Hun, 118, it is said that an exception to a refusal of a request to find a specific fact (as contrasted with a refusal to find on a specified question of fact) is not authorized ; see, also, note in 27 Abb. N. C. 202-211.
      The statute is as follows:
      “ § 992. An exception may be taken to the ruling of the court or of a referee, upon a question of law, arising upon the trial of an issue -of fact. Except as prescribed in section] 1180 of this act, an exception cannot be taken to a ruling, upon a question of fact. For the purposes of this article, a trial by a jury is regarded as continuing, until the verdict is rendered.
      “ § 993- Upon the trial of an issue of fact by a referee, or by the court, without a jury, a refusal to make any finding whatever, upon a question of fact, where a request to find thereupon is seasonably made by either party, or a finding without any evidence tending to sustain it, is a ruling upon a question of law, within the meaning of the last section.
      “ § 994. Where an issue of fact is tried by a referee, or by the court, without a jury, an exception to a ruling, upon a question of law, made after the cause is finally submitted, must be taken, by filing a notice of the exception in the clerk’s office, and serving a copy thereof upon the attorney for the adverse party. The exception may be so taken, at any time before the expiration of ten days after service, upon the attorney for the exceptant, of a copy of the -decision of the court, or report of the referee, and a written notice of the entry of judgment thereupon. If the notice of exception is filed before the entry of final judgment, it must be inserted in the judgment roll; if afterwards, it must be annexed to the judgment roll. In either case, it constitutes a part of the papers upon which .an appeal from the judgment must be heard.”
    
   Per Curiam.

The plaintiff’s exceptions, if duly taken under section 994 of the Code, were properly inserted in the case (Code, § 997; French v. Powers, 80 N. Y. 146). It does not appear that they were not properly taken in the manner and within the time prescribed in section 994. They were directed to be stricken out of the case on the settlement, on the ground that exceptions so taken are not to be inserted in the case, but are brought up in connection with the judgment roll. In this we think the judge erred. Section 997 seems to be decisive that such exceptions may be inserted in the case.

The general term affirmed the order, on the ground that only exceptions properly taken co.uld be incorporated into the case, and that the exceptions inserted by the plaintiff had not been taken in time. This does not appear. " -

We think there is no doubt that the plaintiff, in order to make his exceptions valid, must have conformed to the'provisions of section 994, and that, if the exceptions-were not taken in the manner there provided, they are-not valid. If the plaintiff, by mistake or inadvertence, has not conformed his practice to that section, his exceptions will fail, unless he is relieved under section 724 or in some other way.

As it stands, the plaintiff is entitled to a reversal of the order, since the ground upon which the general term proceeded is not supported by any facts appearing in the-papers.

All the judges concurred.

Orders- of special and general terms reversed, and. motion to re-settle the case granted, with costs.  