
    Henry C. Miner, Appellant, v. The Edison Electric Illuminating Co., Respondent.
    (Supreme Court, Appellate Term,
    March, 1899.)
    Appeal — Refusal to dismiss on plaintiff's case reviewahle, although the case on appeal does not contain all the evidence.
    The fact that a case, as settled, fails to state that it contains all the evidence, does not preclude the appellate court from considering an exception to the denial by the trial court of a motion to dismiss the complaint on 'ihe plaintiff's case, as such a motion is notice to the latter that the defendant intends to question the sufficiency of the proof and it becomes the duty of the plaintiff to amend the case so that it will sustain the ruling made.
    Miner v. Edison Electric Illuminating Co., 22 Misc. Rep. 543, affirmed.
    Appeal from an order of the General Term of the City Court of the city of New York, reversing a judgment in favor of the plaintiff and directing a new trial.
    Benjamin Steinhardt, for appellant.
    C. R. Waterbury, for respondent.
   Per Curiam.

After a careful consideration of the evidence in the case and the brief submitted by the counsel for the appellant in support of his appeal, we are of the opinion that the order of the General Term of the City Court directing a new trial was right. Assuming that the employees of the defendant undertook to make the contract sued on, there is no evidence in the case which is sufficient to support the conclusion that they had any authority from the defendant to hind it in the matter. The contention that there was a subsequent ratification by the defendant is equally without reasonable support.

There was no statement in the case as settled that it contained all of the evidence, and the appellant maintains that for that reason the exceptions to the denial by the trial court of the motion to dismiss the complaint at the close of the plaintiff’s case, cannot be considered, because evidence may have been given, which was omitted on the settlement, mending the plaintiff’s case, and that by reason of the absence of the statement that all the evidence was before the appellate court, there is an uncertainty upon the subject which is fatal to the consideration of the exception. The position is untenable. The precise point was raised in the case of Wynne v. Haight, 27 App. Div. 7, and was disposed of contrary to the appellant’s contention, the court holding that an exception to the denial of such a motion at the close of the plaintiff’s case is notice to him of an intention on the part of the defendant to raise the question of the sufficiency of the plaintiff’s proof, and impress upon the latter the responsibility of adding to the case by amendment any proof which may be necessary to sustain the ruling made upon the trial.

The order appealed from must, therefore, be affirmed and under the stipulation of the appellant in that event, judgment absolute must be rendered against him.

Present: Beekman, P. J. and Giegerich, J.; Gildersleeve, J., not voting.

Judgment and order affirmed, with costs, and judgment absolute directed for the defendant upon the appellant’s stipulation.  