
    Vicenzo Orlando, Respondent, v. Nicolo del Piano et al., Appellants.
    (Supreme Court, Appellate Term,
    May, 1897.)
    Appeal — Dismissal for failure to file return.
    Where the appellant, although given an opportunity to do so, fails to procure a return of the justice which includes the evidence, a motion to dismiss the appeal on the ground of failure to procure the filing of the justice’s return should be granted. ,
    
      Motion by plaintiff-respondent to dismiss appeal for failure, to procure the filing of the justice’s return. .
    C. E. LeBarbier, for motion.
    •W. Rockwell, opposed.
   McAdam, J.

The motion came on to be heard April 26, 1897, and it was conceded that the return had not been' filed; whereupon, on application of the appellants, the disposition of the motion was postponed to April 29tli, in order to enable them to procure the filing' of the return in the meantime, that the appeal might be heard on the adjourned day.

Upon the last-named day it appeared that the justice had on April 28th filed a return, in which it is stated that the action'is for goods sold and delivered, and the. answer a general denial, and that the trial resulted in a judgment in favor of the plaintiff for $26.16 and $4.50 costs. . The justice further returned as follows: “ The stenographer being absent I refused to try the casé, but upon the consent of counsel for both parties the- matter was tried before me and judgment rendered upon the evidence taken. I do not now remember any part of the evidence given at the trial, no notes having been taken by me at the trial; consequently have nothing in my possession to refresh my memory. The exhibits offered in evidence are hereunto annexed.” It was admitted by the. respective counsel that neither had taken any notes of the evidence, so that no copy of the evidence could be furnished to the justice for his guidance, and they would have to rely entirely upon their memory for a statement of what- occurred, respecting which they seem unable to agree.

The presumption is always in favor of the ■ judgment, and where a return or case on appeal does not contain the evidence it will be inferred that the evidence warrants the judgment. Norton v. Matthews, 11 Misc. Rep. 711. Baylies in his work on New Trials at page 174 says: “An appellate court presumes nothing in favor of the party alleging error; and if compelled through imperfection in the statement of facts contained in the appeal-book 'to resort to presumptions, will adopt such only as will sustain the judgment.” See also Carman v. Pultz, 21 N. Y. 547; Smith v. Newland, 9 Hun, 553, 554; Phillip v. Gallant, 62 N. Y. 256, 265; Tomlinson v. Mayor, 44 id. 601; Hughes v. Hughes, 10 Misc. Rep. 180, 183. Hence the rule that an appellant in order to prove error must insert in his case, or cause to be inserted in the return, the evidence necessary to establish the error upon which he relies. The appellants having failed to observe this rule, they have not procured the return to be filed for which the adjournment was granted, and have not, therefore, excused the default which existed at the time of hearing the motion originally.

It is unnecessary in the present instance to point out the remedy of an appellant where such a return is made, for it is sufficient for present purposes to hold that as the appellants were in default when the motion was heard, and have not in a satisfactory manner excused it, the motion must be granted.

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

Motion granted.  