Levi v. Newhall

On an appeal from a judgment entered on the report of a referee, the court at general term will review all errors of law that are presented by the exceptions, and will consider without an exception whether the findings of fact are against the weight of evidence; but in order to do that the case must show that it contains all of the evidence.

An exception to a finding of fact presents nothing for this court to review, unless there be no evidence to sustain such finding of fact, in which event it presents a question of law.

In order to present the question to the general term that the findings of fact are against the weight of evidence, there must be a certificate of the referee that all of the evidence is in the case. Without such certificate the general term will assume that the evidence was sufficient to support the finding of fact Spence v. Chamber, 39 Hun, 193 ; Porter v. Smith, 7 Civ. Pro., 195; Harkness v. R. R. Co., 55 Superior Ct., 532.

Hone of the rulings made by the referee on the admission or rejection of evidence were erroneous.

We are also of the opinion that the findings of fact are not so clearly against the weight of evidence that we would be author*284ized in reversing the judgment, even if the case fairly presented, the question of the weight of evidence to us.

Judgment affirmed, with costs and disbursements.

Dugro, J., concurs.