
    Isaac C. Simonson, Respondent, v. Anna Krollpeiffer, Appellant.
    
      Supreme Court, Second Department, General Term,
    
    
      June, 28, 1889.
    1. Appeal. Verdict.—Where two juries have passed upon conflicting evidence favorably to plaintiff, the second verdict will not be disturbed on appeal.
    2. Same. Certificate.—The appellate court will infer that there is testimony which will support the verdict on conclusions of fact, unless it affirmatively appears that all the evidence is returned.
    3. Same.—Unless notified to the contrary in the appropriate method, the respondent has a right to assume that only questions ,of law are intended to be raised by the appeal.
    Appeal from a judgment entered upon a verdict.
    
      John J. Leary,for appellant.
    
      
      Horaoe Graves, for respondent.
   Pratt, J.

The evidence is conflicting ; bnt two juries have passed upon it favorably to the plaintiff, and under such circumstances the verdict should not be disturbed.

If any doubt remained in our minds, it would be removed by the fact that the case contains no certificate that it embodies all the testimony given upon the trial.

The practice has been settled for many years that it must affirmatively appear that all the evidence is returned, or the court will infer that testimony was given upon the trial which would support the verdict on conclusions of fact.

If the object of the appellant be merely to review questions of law, it might be sufficient to set out so much of the evidence as will show the supposed error ; and the respondent has a right to assume that only questions of law are intended to be raised by the appeal, unless he is notified to the contrary in the appropriate method.

This rule has been applied for so long a time (see 16 Hun, 415) that to hold otherwise would be liable to work surprise and cause judgments to be reversed for supposed defects in proof that do not exist in fact.

The presumption that the judgment is based upon sufficient evidence must prevail unless the contrary is distinctly made to appear.

Judgment affirmed, with costs.

All concur.  