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2 E.D. Smith 180

Capewell v. Ormsby

New York Court of Common Pleas

Decided October 15, 1853

New York Court of Common Pleas · decided 1853-10-15

Appeal by the defendant from a judgment against him in the First District Court, for work, labor and services. The appellant produced affidavits to supply alleged deficiencies in the justice’s return, and based his argument in favor of a reversal upon the state of the proofs appearing from the affidavits in connection with the return.

Decided 1853-10-15

By the Court. Daly, J.

¶1If any thing is omitted in the return, the remedy of the appellant is to procure a further return. The whole of the appellant’s argument, or that which is material to show that the j udgment was erroneous, is founded upon facts which do not appear on the return. He should have made an application to compel the justice to return as to these facts, and having neglected to do so, his case must now stand upon the return as it is.

¶2*181[The opinion proceeds to discuss the evidence and rulings in the court below, as certified in the return, and concludes with concurring in the propriety of the judgment.]

¶3Judgment affirmed.

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