
    DAINESE against ALLEN.
    
      New York Superior Court;
    
    
      General Term, May, 1873.
    Practice in Excepting and in Preparing a Case. —Letters as Evidence.—Appeal. ■
    On appeal from a judgment on a report of a referee, the court have power to review the rulings of the referee on questions of evidence arising on the trial, and presented by exceptions taken at the trial, although the case contain no exceptions to the referee’s conclusions of law.
    The mode of taking exceptions on or after a trial by referee, stated. Where the whole of a correspondence is offered in evidence, it is the duty of counsel, on objection being made, to show the materiality of the letters by pointing out the particular passages upon which he intends to rely.
    Thus, in an action involving the question of a factor’s breach of the instructions contained in the letters of his principal,—Held, that the correspondence between the parties during the period covered by the transactions was not properly admissible in mass; and,' the referee having excluded the letters, the court on appeal would not reverse the judgment on that ground, especially as the substance of the material part of the correspondence rejected, did not appear in the case.
    ' Francis Dainese sued Richard H. and Anthony B. Allen, to recover upward of six thousand dollars, which he alleged had been over-paid to the defendants by the plaintiff’s agents, in transactions embracing shipment of goods to plaintiff by one Zantzinger, his agent. The defendants set up a counter-claim arising out of the same transactions.
    Upon the trial, the principal questions litigated were, whether the agents had acted under a fixed limitation as to price in purchasing goods which they had bought for plaintiff from defendants, and whether notice of such a limitation vhad been brought home to the defendants, who had in fact furnished the goods at a higher price than alleged to have been thus limited.
    The referee, before whom the cause was tried, found the questions of fact in favor of defendants, and dis' missed the complaint, and gave the defendants judgment for their counter-claim.
    Upon.the trial, the plaintiff’s counsel took various exceptions to rulings in respect to evidence, which appear in the opinion. He'took no exceptions after the decision to the findings of fact or of law.
    After, judgment had been entered, the plaintiff appealed, and claimed a reversal of the judgment on the ground of alleged erroneous rulings of the referee on questions of evidence, which had been duly excepted to.
    
      Samuel Huntington, for appellant.
    
      John L. Cadwalader, for respondent.
    
      
       For a statement of the practice in" excepting and in preparing case, &c., see note by Mr. Moak, in 57 Barb., 210.
    
   By the Court.—Freedman, J.

Section 372 of the Code provides: “The trial by referees shall be conducted in the same manner and on similar notice as a trial by the court. . . . They must state the facts found and the conclusions of law separately, and their decision must be given, and may be excepted to and reviewed in like manner, and with like effect in all respects, as in cases of appeal under section 268; and they may in like manner settle a case or exceptions. The report of the referees upon the whole issue shall stand as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court.”

Section 268, thus referred to, and which relates to a trial by the court without a jury, further prescribes, that “/or the purpose of an appeal, either party may except to a decision on a matter of law arising upon such trial withing ten days after notice in writing of the judgment, in the same manner and with the same effect, as upon a trial by jury . . . And either party desiring a review upon the evidence appearing on the trial, either of the questions of fact or of law, may, at any time within ten days after notice of the judgment, or within- such time as may be prescribed by the rules of the court, make a case or exceptions in like manner as upon a trial by jury, except that the judge, in settling the case, must briefly specify the facts found by him, and his conclusions of law. But the questions, whether of fact or of law, arising upon the trial, can only be reviewed in the manner prescribed by this section,— the questions of law in every stage of the appeal, and the questions of fact upon the appeal to the general term of the same court, as prescribed by section 348.”

Under section 348 an appeal upon the law may be taken to the general term from judgment entered upon the report of referees or the direction of a single judge of the same court in all cases, and upon the fact, when the trial is by the court or referee.

It is apparent, as well from the language of section 268, as from its history and subject matter, that two classes of exceptions are contemplated by its provisions. The first clause of the section provides, that either party may except to a decision on a matter of law arising on the trial within ten days after notice of the judgment. This clause could not have been intended, and it has never been construed so as to authorize a party to except to a decision made on the trial in relation to the reception or rejection of evidence, or to take any exception which, he might, and, according to the ordinary course of practice, would have been required to take on the trial. And yet such exceptions come within the letter of the section—they relate to “matters” or questions of law arising on the trial. It is clear, however, that they were not intended by. the language of this clause, and that, as to such exceptions, the party, for all purposes of an appeal, is limited to those taken on the trial (Brewer v. Isish, 12 How. Pr., 486).

Consequently, after trial, the first step will be to except, within the time limited, to the legal points and propositions involved in the final decision rendered against the party intending to appeal. The next proceeding will be to prepare a case and have it settled. This is necessary for the purposes of a review in whichever mode the cause has been tried.- It generally contains the evidence bearing upon the conclusions of fact intended to be reviewed ; the exceptions taken during the trial, as well as those taken after the trial, to the final decision ; and a separate statement of facts found and conclusions of law (Johnson v. Whitlock, 13 N. Y. [3 Kern.], 348).

Where the case, as settled, contains no exception either to the final decision or to any question of law decided during the trial, the court cannot, on appeal, review it.

But exceptions to conclusions of law may be reviewed, although the printed case does not contain any of the evidence. On such an appeal the question is : Has the judge or referee drawn a correct conclusion from established facts ? (Frost v. Smith, 7 Bosw., 108).

Findings of fact need no exception (Hatch v. Fogerty, 7 Robt., 488 ; Lefler v. Field, 50 Barb., 407 ; Mayor, &c. v. Erben, 10 Bosw., 189 ; S. C., 24 How. Pr., 358 ; Magie v. Baker, 14 N. Y. [4 Kern.], 438.

And when a party relies exclusively upon erroneous decisions made during the trial, it is not necessary to make and serve formal exceptions to the conclusions of law or to the final decision (Cowen v. Village of West Troy, 43 Barb., 48 ; Mayor, &c. v. Erben, above).

Notwithstanding, therefore, the case before us contains no exceptions to the dismissal of the complaint or to the referee’s conclusions of law, we have no doubt of our power to review the rulings of the referee upon the questions of .evidence which arose upon the trial and are presented by the exceptions taken at the time, and to reverse the judgment and grant a new trial, if it be found that the referee has erred in any of these particulars to the prejudice of the plaintiff.

The principal exceptions relate to the exclusion of certain letters. Plaintiff’s counsel offered in evidence, among other matters and in different forms, a part of the correspondence between the defendants and W. 0. Zantzinger, and claimed its admission on the ground that, taken as a whole, it afforded proof that the authority of Zantzinger as - the agent of the plaintiff was limited, and that the defendants knew of such limitation. No particular parts of this correspondence were pointed out or referred to by plaintiff’s counsel, nor was the said correspondence read or examined by the referee ; but it was insisted, that by a general examination of these letters certain admissions would be discovered from their general tenor.

The defendants objected, (1.) Generally to the admissibility of the letters as evidence ; (2.) That as the purpose was to extract admissions from the letters generally, it could not fairly be done by introducing letters of considerable length without referring to any particular parts or passages as sustaining plaintiff’s view, and that no right existed to introduce papers and insist that the defendant’s counsel and the referee should perform the labor of plaintiff’s counsel and discover the materiality of the testimony : and, (3.) That as the avowed purpose was from a lengthy correspondence,—as a result of the whole, and not. from any particular portion,—to establish that defendants knew the limitation, this conclusion could not be drawn from a part or from one side of the correspondence ; that is, that as it required a careful examination to find the' evidence of this knowledge, and as it only arose, as it were, from the flavor of the general correspondence, that it was but proper to introduce both sides. The referee ruled with the. defendants and excluded the letters.

Plaintiffs counsel then offered for the same purpose and in the same manner a part of the corréspondence between the defendants and the plaintiff. This was also excluded.

Plaintiff’s counsel thereupon stated that the deposition of plaintiff, already taken herein, would supply the contents of the letters which were not produced, and he offered the deposition with the letters already produced as constituting a complete correspondence, with secondary proof of a part thereof. After an examination of this question and of the admissibility of the letters written by the defendants, the referee ruled thereon as follows:

“To prove admissions by the defendants, the answers of the Allens may be put in evidence, 1. To all of those letters from Dainese to themselves which are mentioned in the depositions; and, also, 2. Their answers to letters written by Dainese to Zantzinger, and by Zantzinger communicated to them, as stated in Zantzinger’s deposition, and in Dainese deposition. These letters to Zantzinger communicated to defendants are marked W. C. Z., 1-6. These letters from Dainese to defendants are dated January 25, April 19, May 24, July 16, August 16, 1864.”

A number of letters of the defendants to plaintiff, dated March 23, April 5, 15, 16, March (or May) 4, May 14, June 1,' 14, July 8, 27, March 2, 4, 23, 29, April 25, 26, 29, July. 12, all in 1864, were thereupon offered under the ruling of the referee for the purpose of proving, by their general tenor, admissions on the part of the defendants, but which the plaintiffs’ counsel stated, in answer to a question from the referee, did not appear (except that dated March 2,1864,) to be specific answers to any of the letters mentioned in the referee’s last ruling. No particular passages were pointed out to the referee, nor were the letters read by defendants’ counsel or examined by the referee.. The letters were objected to by the defendants’ counsel as before, and were excluded, except that of March 2, which plaintiff’ s counsel declined to put in evidence by itself.

Plaintiff’s counsel finally read a number of letters that had passed between plaintiff and Hopper, and between the plaintiff and the defendants, and they were received in evidence together with other evidence of a documentary character.

Now it may well be, that some, if not all of the excluded letters were admissible. They certainly should have been received for what they were worth, if they had any bearing at all upon the points at issue. The declarations and admissions of a party are always admissible, and letters written by a party are evidence against him without the production of those to which they are answers, provided they relate to a controverted question in the case and thus become material. If irrelevant, however, they are to be excluded, and no counsel has a right to introduce whole packages of papers without reading them or any of them,' or otherwise showing their materiality by a reference to their essential parts. When, therefore, the attention of plaintiff’s counsel was called to this point, he should have established their materiality by pointing out the particular passages upon which he intended to rely. He did not choose so to do. Hor did he see fit to enlighten us upon this point. Hone of these letters are set forth in the printed case, and consequently we are unable to determine, whether the rejected correspondence, or some part thereof, in point of fact, contained what plaintiff’s counsel in" the face of defendants’ denial claimed it did. The rule is, that the appellate court will not inquire into the relevancy of rejected evidence, unless such evidence, or its substance, appear in the ease, but will assume that the judge or referee who tried the cause, properly rejected it (Berry v. Mayhew, 1 Daly, 54).

On appeal every reasonable intendment, on questions of law as well as of fact, is to be made in support of the judgment, and the party who alleges error in the decision of a referee, or of a judge without a jury, holds the onus of establishing, either, that an erroneous legal conclusion has been deduced from the facts found, or that some error of law has been committed in the interlocutory proceedings by which such conclusion was reached (Mead v. Bunn, 32 N. Y., 275 ; Heroy v. Kerr, 8 Bosw., 194 ; Richardson v. Dugan, 8 Id., 207 ; Hoyt v. Hoyt, Id., 511 ; Lee Bank v. Satterlee, 17 Abb. Pr., 6 ; S. C., 1 Robt., 1 ; Juliano v. Watson, 43 N. Y., 577).

Plaintiff has not only failed to show any such error, but it even appears from the unquestioned findings and conclusions of the referee, that plaintiff was not harmed by the exclusion of the letters in question. [Comments on the evidence, showing that this was the fact, and some remarks on minor exceptions raising no question of general interest, are omitted.]

It appearing, therefore, that no error has been committed to the prejudice of the plaintiff, the judgment appealed from must be affirmed, with costs.

Barbour, Ch. j., and Sedgwick, J., concurred.

Judgment accordingly. 
      
       This rule is strictly applied (see Onondaga County Mut. Ins. Co., 2 N. Y. [2 Comst.], 98 ; Brooks v. Christopher, 5 Duer, 216).
     
      
       Affirmed on the merits in 3 Abb. Ct. App. Dec
      
     
      
       See Strong v. Strong, 1 Abb. Pr. N. S., 233.
     
      
       Affirmed in 2 Abb. Ot. App. Deo., 359.
     