#### DELANEY v. VALENTINE et al.

(Supreme Court, Appellate Division, Third Department.

December 18, 1896.)

Appeal—On Exceptions—Case.

A paper served by defendants on plaintiff reciting the history of the case, ending with judgment for plaintiff, stating that the facts found by the court are in the decision, and setting qut the judgment roll, including the decision, defendants’ exceptions to the conclusions of law in the decision, and their notice of appeal from the judgment, cannot be amended by plaintiff to include evidence, as it is not a “dase,” though concluding with the statement that it is defendants’ proposed case on appeal, it being apparent that the appeal is merely to review exceptions to the findings on questions of law (Code Civ. Pi-oe. §§ 994, 998), where a case is not necessary, and the evidence is not taken up.

Appeal from special term, Saratoga county.

Action by William J. Delaney, as receiver, against Thomas B. Valentine and others. From an order denying plaintiff’s motion to *572amend the “case” on appeal by defendants from a judgment for plaintiff, plaintiff appeals.

Affirmed.

Argued before PARKER, P. J., and LARDON, HERRICK, and MERWIN, JJ.

Winsor B. French, for plaintiff.

W. P. Butler (Edgar T. Brackett, of counsel), for defendants.

HERRICK, J.

This is an appeal from an order of the special term denying the plaintiff’s motion for a resettlement of the case, and amendments thereto made in the above-entitled action. The trial of this action was had before the court without a jury, and resulted in a judgment in favor of the plaintiff. The court made findings of fact and of law, and from the judgment entered upon such findings, and the exceptions thereto, the defendants appealed, and served upon the plaintiff’s attorney the following: .

> “Supreme Court.

> “William J. Delaney, as Receiver, etc., Respondent, against Thomas B. Valentine, William H. Lockwood, and Ann A. Lockwood, Appellants.

> Proposed Case.

> “This action was commenced by the service of the summons and complaint on the 19th day of August, 1893. The separate answers of the defendants were served on September 8tli, 1893. The names of the parties in full are as above stated. There has been no change of parties pending this action. The action was tried in October, 1893, and the complaint was dismissed. The general term reversed the judgment, and ordered a new trial. The action was tried a second time before Mr. Justice McLaughlin, without a jury, in February, 1896. On such trial the court directed judgment for the plaintiff against the defendants for the relief demanded in the complaint.

> “The facts found by the court are set out in the decision and are the only ones found by it *(and the only facts established on the trial).*

> “(Here insert the judgment roll, including the decision of the trial justice.)

> “(Here insert exceptions served by the defendants, the opinion of the general term, and notice of appeal served by them.)

> *“Take Notice.*The foregoingis the case on appeal proposed by the defendants herein.”

This was signed by the defendants’ attorneys, addressed to the plaintiff’s attorney, and indorsed with the title of the action, and with the names and addresses of the defendants’ attorneys. The plaintiff’s attorney proposed as amendments thereto, first, to strike out all the words italicized, and, as a second amendment, to insert after the words so stricken out certain evidence given upon the trial of the action, and moved before the special term for the allowance of such amendments, and their addition to the case. The special term struck out the italicized words referred to, but refused to allow the evidence to be inserted, and certified the case as settled, and ordered the same to be filed without such evidence in the case. The appellant here contends that the evidence that he desires inserted proves or tends to prove certain important facts tending to sustain the conclusions of law found by the trial court. I think the order appealed from must be affirmed. The evidence proposed forms no part of the record upon which the appeal is to be heard. A party desiring to appeal from a judgment entered' upon *573the decision of the court is not obliged to prepare a case to be settled as required by section 997 of the Code of Civil Procedure, but he may malee exceptions to the findings of the trial court upon questions of law, and have his appeal heard upon those exceptions, without any case. Code Civ. Proc. § 998; Schwarz v. Weber, 103 N. Y. 658, 8 N. E. 728. The appeal of the defendants was evidently taken pursuant to section 998 of the Code of Civil Procedure, and is one in which no case need be made, and where the evidence is not brought before the appellate court. To permit the respondents, upon such an appeal, to have the evidence taken upon the trial inserted in the appeal book, would defeat the right of the appellant to have his appeal heard upon the decision of the trial court, and his exceptions to the rulings of the trial court upon the questions of law only. Of course, it is possible that this exclusion from the appeal book to be used upon the appeal of the evidence taken upon the trial may sometimes work to the disadvantage of the respond* ent upon such appeal, but, as has been said by the court of appeals:

> “The party succeeding upon a trial before a judge or referee must see to it that he has findings of facts sufficient to uphold his judgment, and, if he does not, he is exposed to the peril of a reversal of his judgment by an appeal, based solely upon the exceptions of the defeated party to the conclusions of law.” Rochester Lantern Co. v. Stiles & Parker Press Co., 135 N. *Y.*209, 31 N. E. 1018.

The papers served upon the appellant’s attorney show very plainly what was intended to be relied upon; that the parties appealing intended only to bring up for review the exceptions to the ruling of the court, as provided in sections 994, 998, Code Civ. Proc. The fact that it had written upon it “Proposed Case” does not change the appeal book to be used upon appeal to a case. The record the party appealing proposes to take for consideration is very commonly, although perhaps improperly, called a “case.” Calling it such does not constitute it a ease and exceptions, wherein the evidence, or a statement thereof, must appear. The preliminary matter immediately following the title of the action is simply a statement in full of the matters required by rule 41, and does not constitute the papers served a case and exceptions. The defendants in this action, having elected to appeal simplj upon the exceptions to the findings of the trial court upon the questions of law, cannot be deprived of that right by turning their appeal into one to be heard upon a case and exceptions.

The order must therefore be aifirmed, with $10 costs and disbursements. All concur.