Roberts v. . Tobias

*5 Haight, J. This action was brought to set aside an assignment made for the benefit of creditors upon the ground, as it is claimed, that the assignment was fraudulent and void for the reason that. it did not contain a clause preferring the wages or salaries owing to the employes of the assignors as required by the provisions of chapter 328 of the Laws of 1884. The trial court found in favor of the plaintiffs, and aivarded them -the judgment demanded in their complaint. If the decision was placed upon the ground claimed, it was clearly wrong, and the judgment should have been for the defendants. (Ri chardson v. Thurber, 104 N. Y. 606.) But the difficulty is that the defendants have neglected to observe and comply with the simple rules of practice prescribed by the Code which entitles them to a review of the judgment of the trial court. They have neglected to serve or file any exceptions to the findings of facts or conclusions of law made by the court as provided for by section 994 of the Code of Civil Procedure.' If there was no evidence tending to sustain a finding of fact, it was a ruling upon a question of law, and an exception should have been taken thereto. (Code Civ. Pro. § 993.) The only exceptions appearing in the case are embraced in the following statement: “ The defendants respectfully except to the eighth and tenth proposed findings of facts, and as to the first and second proposed findings of law submitted by the plaintiffs’ attorney herein.” The findings proposed by the plaintiffs’ attorney are not printed in the appeal book, and we are unable, therefore, to determine whether they are the same as those signed by the trial judge. The exceptions do not purport to be taken to the decision of the court, and we do .not think they can be so considered. The General Term, however, was of the opinion that it had the right to reverse the judgment even though no exception had been taken. We do not question the power of that court to reverse for errors committed upon the trial, even though' they are not raised by exceptions. It is the duty of that court to examine the facts as well as law, and, if errors have been *6 committed involving the right .of a party to recover, it may, in its discretion, grant a new trial, (G. Bank v. Penfield, 7 Hun, 279-284; 69 N. Y. 502; Mandeville v. Marvin, 30 Hun, 282-288; Whittaker v. D. & H. C. Co., 49 id. 400 ; S. O. Co. v. A. Ins. Co., 79 N. Y. 506; Hamilton v. T. A. R. R. Co., 53 id. 25.) If, therefore, the findings of facts are unsupported by the evidence, or the conclusions of law are not warranted by the findings of fact, the General Term have the power to reverse the judgment and order a new trial. But in this case the General Term has reversed on questions of law and not of fact. The trial court has found as a fact “that the said alleged assignment is void and fraudulent, and was not made in accordance with the statutes in such cases made and provided, but was executed and delivered by the assignors therein named, with the intent to hinder, delay and defraud the creditors of said Emmens and Roach, including these plaintiffs.” The evidence appearing in the appeal book does not support this finding. The General Term may have intended to have placed its reversal upon this ground, but it has not done so. Had it been so placed there should have been inserted in the order a statement to the effect that the reversal was made upon questions of fact as well as law, and in the absence of such a statement we are required to presume that the reversal was upon questions of law only. (Code Civ. Pro. § 1338.) The General Term has, therefore, permitted the finding of fact to which we have alluded, to stand unreversed. By so permitting it, it not only supports, but requires the conclusions of law made, and inasmuch as this court can only review exceptions, it follows that we are powerless to give the defendants relief. The order of the General Term should, therefore, be reversed and the judgment of the Special Term affirmed, with costs. All concur except Potter, J., not voting. Order reversed and judgment affirmed.