
    George A. Porter et al., Resp’ts, v. Richard Penn Smith et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed December 13, 1887.)
    
    Practice—Case and exceptions—What must contain.
    It is necessary to entitle an appellant to bring up for review by the general term a finding of fact, that the case contain a certificate that all the evidence given upon the trial is set forth within it.
    
      Appeal from a judgment of the supreme court, general term, fourth department, affirming a judgment entered upon the report of a referee.
    
      Louis Marshall, for app’lts; M. M. Waters, for resp’ts.
    
      
       Affirming 35 Hun, 118.
    
   _Finch,

The general term refused to review the ques-_tions of fact sought to be argued by the appellants upon the ground that the case as'made did not contain a statement that all the evidence given upon the trial was that set forth within it; and the correctness of such ruling presents the sole question on this appeal. The necessity of the certificate has been asserted several times in the supreme court Spence v. Chambers, 39 Hun, 193; Howland v. Howland, 20 Hun, 472), and has been justified upon the ground of the changed practice by the new Code which forbids exceptions to findings of fact. Section 992.

The theory upon which a case is prepared and settled has long been understood to be that the appellant should insert in it all the evidence bearing upon the questions intended to be raised, and the respondent, by amendment, whatever he deemed necessary to a solution of those questions. An exception appearing in the proposed case serves as a notice to the respondent of an intention to raise the question of error in the ruling excepted to, and puts upon him the responsibility of adding by amendment any needed proof. Thus, on a motion for a non-suit upon the ground that the evidence does not show a cause of action, an exception to the ruling warns the respondent that he must add any omitted fact essential in his judgment to sustain the ruling. And where, under the old Code, which permitted exceptions to findings of fact, such an exception was taken, it was notice of an intention to assail such finding as erroneous, and if any proof necessary to sustain it was omitted from the proposed case, it became the duty of the respondent to supply it.

We therefore held that the general term on appeal should assume that the case contained all the evidence bearing upon the questions sought to be raised. Perkins v. Hill, 56 N. Y., 87.

But the situation is radically changed by the provision of the new Code, forbidding exceptions to findings of fact and permitting them to be raised without exceptions. Under that practice the respondent gets no warning or notice of an intention to review questions of fact unless the case certifies that all the evidence has been included. If it so certifies, the respondent must look to it that nothing which he deems essential is omitted, but if it does not so certify, he is not in fault for supposing that questions of law only are intended to be reviewed, and omitting to load the case with needless proof. These views of the general term seem to us sensible and well founded, and since they more immediately concern the duty of that court and the practice at its bar, they should have great weight with us.

We have fully considered the suggestions to the contrary presented by the appellant, but they have not convinced us that a different rule should be established. Its tendency would be to compel respondents to require in every case the insertion of all the evidence as a measure of safety; and though, as the appellant suggests, that difficulty might be removed by some action of the trial court in settling the case, and in some way putting that action in the record, it would hardly be wise to reverse a rule, already adopted, which adequately reaches the desired result, in order that some other rule, no more effective or convenient, should be substituted. We, therefore, deem it our duty to approve of the practice adopted.

The judgment should be affirmed, with costs.

All concur, except Rtjger, Oh. J., not voting and Rapadlo, J.,  