Williams v. Lindblom , 97 N.Y. Sup. Ct. 370 ( 1895 )

FOLLETT, J.

The record is very defective on which we are asked to reverse the order of the special term confirming the referee’s report and the judgment entered thereon. If, as the appellant insists, we are to review the judgment on the case containing exceptions as on appeal from a judgment entered on a report of a referee appointed to hear and determine an action, the answer is that a case has not been made and settled by the referee, as provided by section 997 of the Code of Civil Procedure. “In references other them for the trial of the issues in an action * * * the testimony of the witnesses shall be signed by them and the report of the referee shall be filed with.the testimony.” Gen. Rule 30. The testimony contained in the record does not purport to have been’ signed by the witnesses, and, besides, the order confirming the referee’s report and overruling the exceptions thereto recites that it was made on the “testimony taken,” and other papers not necessary to be referred to here. At pages 190 and 191 of this record it appears that both parties read from the former appeal book a mass of testimony given by witnesses on the trial of the action. None of this evidence is contained in the present record, the substance thereof is not stated, nor is any reason given why it is not contained in the record. An assessment of damages is reviewable on the merits only, and not on technical exceptions; and on a record like the one before us the merits cannot be reviewed. Besides, on appeal from an order the record on which the order was made should be presented to this court, unless some part of it is omitted by the sanction of the special term. If we could overlook all of these defects, and consider this case on the merits, we should find no ground for reversing the order and the judgment. We agree with the learned referee that the Illinois judgment was binding on the parties as to the state of the partnership accounts and as to the amount due by and to each partner. When this foreign judgment record was offered in evidence it was objected to by the plaintiff on the grounds: “(1) Not alleged in the pleadings; (2) not complete record.” The answer of defendant Lindblom in this action was verified April 2, 1890, more than two years before the recovery of the Illinois judgment, and he was not bound to plead it by a supplemental answer as a bar to this action, but had the right to use it as evidence of the amount due him, so as to recover a judgment in this state for that amount. There is no evidence before us that the exemplified copy is not a true copy of the whole of the judgment record. The clerk of the court in which the judgment was reco'vered certifies “the above and foregoing to be a true, perfect, and complete transcript of the record.” In the master’s report to the court it is recited that the testimony of certain witnesses and certain documentary evidence are herewith returned as a part of this record. This is the omission of which the plaintiff complains. There is nothing to show that the evidence taken by the master in chancery in an equitable action in Illinois forms part of a judgment record in the action. Under the practice in the court of chancery in this state, the evidence returned by the master and referred to in his report did not form part of the judgment record, and such is the rule in England, and so we think the plaintiff’s exceptions to the admission of the judgment roll untenable.

It was proper to grant an additional allowance in this action. There had been a trial of the issues of fact, and when the judgment entered upon that trial was reversed the question of costs was expressly reserved to abide the final award of costs. The orders of June 8 and of June 18, 1895, are not appealed from. An examination of all of the plaintiff’s exceptions leads us to the conclusion that they would be found to be without merit if they had been presented to us on a proper case, and that the result would have been the same as now.

The judgment and order should be affirmed, with costs. All concur.