Averill v. Hurd
New York Supreme Court
Appeal from judgment on report of referee. Appeal by John Hurd and others from a verdict and judgment in favor of the plaintiffs, James Averill and others. Code Civil Proc.
Read the full summary
Appeal from judgment on report of referee. Appeal by John Hurd and others from a verdict and judgment in favor of the plaintiffs, James Averill and others. Code Civil Proc. N. Y. § 992, provides that “an exception may be taken to the ruling of the court or of a referee upon a question of law arising upon the trial of an issue of fact; except as prescribed in section 1180,” which relates to challenging of jurors, “an exception cannot be taken to a ruling upon a question of fact.” Section 997 provides for an appeal from a judgment rendered after a trial of an issue of fact, and requires the…
1Opinion of the Court
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…
2Cases cited2 opinions
- Porter v. . SmithNew York Court of Appeals · 1887
- Perkins v. . HillNew York Court of Appeals · 1874
3Cited by1 opinion
- Davis v. WillisNew York Supreme Court · 1890