Averill v. Hurd

Learned P. J. The first point made by defendants is that the judgment should be reversed, because it is manifestly unjust. probably means that the referee’s report is contrary to the evidence. The case does not show that it contains all the evidence, or all the evidence bearing on the questions of fact. Since the decision in Porter v. Smith, 35 Hun, 118, affirmed 107 N. Y. 531, 14 N. E. Rep. 446, we must consider it settled that, by the practice under the present Code, (section 992,) we are not called upon to review questions of fact unless the case shows that it contains all the evidence given on the trial. Whether, in this case, we have before us all the material evidence does not appear; and yet we are asked by the defendants to review' the testimony, and reverse on the facts. We think it is best to adhere to the rule above stated, which has the sanction of the court of appeals. It is evidently right that, when a review of the testimony and a reversal on the facts is asked, the appellate court should have before it all the material testimony on which 167 the case was decided. In Perkins v. Hill, 56 N. Y. 87, the court of appeals held that the general term should assume that the case contained all the material evidence. But that doctrine is overruled in Porter v. Smith, ut supra, and the contrary is established, on the ground that section 992 of the present Code has changed the situation. The only exceptions in this case are to the admission of certain letters between the parties, and the ground stated is that they were immaterial. It is not suggested that they were not proved, or that they had not been sent and received. They are letters respecting the matters in controversy. Some are letters written by defendants. Some are plaintiffs’ letters, with the defendants’ replies thereto. Xo reason is given why they should have been excluded, except that they were immaterial. They are generally requests by plaintiffs for payment, and reasons assigned by defendants for non-payment. We see nothing improper in their admission; and, indeed, the defendants’ objection in their point is so general that we think they cannot have relied much thereon. Evidently, the defendants’ principal reliance was on a review of the whole testimony, and a reversal on the facts. As to this, we have already stated the difficulty. Judgment affirmed, with costs. Landon and Ingalls, JJ., concur.