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3 Thomp. & Cook 337

Drew v. Rearick

New York Supreme Court

Decided April 15, 1874

New York Supreme Court · decided 1874-04-15

“ Appeal from a judgment, decision or order entered * * * in favor of the plaintiff,” by defendant David Rearick. This action was one of revivor, brought by Robert Drew against David Rearick and others, and was tried before Mr. Justice Barker without a jury, at the Genesee special term, March, 1873.

Decided 1874-04-15

Gilbert, J.

¶1The appeal in this case has brought up nothing for review. The findings of the justice constitute no basis for an appeal. A judgment must be entered hpon them before they can become the subject of review by an appellate court.

¶2The appellant might have moved for a new trial upon a case or exceptions, pursuant to section 268 of the Code, but he has not done that; No case has been made, nor exceptions settled. Moreover, the important exceptions are to findings of fact. These can be determined only by a comparison of them with the evidence given upon the trial. That is not before us. The proceeding is wholly irregular. The appeal must, therefore, be dismissed, with costs.

¶3Appeal dismissed.

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