
    McGovern v. Eldredge, Impleaded, etc.
    (New York Common Pleas —General Term,
    November, 1892.)
    A judgment of a District Court will not be reversed on appeal on the alleged ground that it is without evidence to support it, or that it is against 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 respondent could not have caused the omission to he supplied by means of an amended return.
    In an action by a subcontractor against owner and contractor for the fore: closure of a mechanic’s lien, claimed under the provisions of chapter 342, Laws of 1885, the defense of the owner being payment to the contractor in full before notice of plaintiffs lien was filed, and that the defendant contractor had not fully and substantially performed the agreement with owner, the plaintiffs notice of lien, the agreement entered into between defendant E., as owner, and defendant L., as contractor, for alterations to the former’s premises, and the specifications referred to in and made part of the agreement, were received, in evidence, and their relevancy, materiality and competency thereby conceded. These exhibits were thereafter lost, and, therefore, not included in the justice’s return. On appeal from judgment for plaintiff, held, that the judgment was supported hy 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.
    Under section 3056, of the Code of Civil Procedure, appellant, on the argument of the appeal, had the right to establish the contents of the lost exhibits hy secondary evidence.
    Appeal from a judgment for plaintiff recovered in a District Court.
    Action by subcontractor against owner and contractor for the foreclosure of a mechanic’s lien, claimed under the provisions of chapter 342, Laws of 1885, the defense of the owner being payment to the contractor in full before notices 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 plaintiff (respondent).
    
      M. Cleiland Milnor, for defendant (appellant).
   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.

On 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 former’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 them 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 tins 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 section 3213 the foregoing provisions 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 apjieal, 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.

Judgment affirmed.  