Theodore M. Gregory, Respondent, v. Squire Clark, Personally and as Executor, etc., of Susan Conklin Clark, Deceased, Appellant, Impleaded with Others

Theodore M. Gregory, Respondent, v. Squire Clark, Personally and as Executor, etc., of Susan Conklin Clark, Deceased, Appellant, Impleaded with Others. A case on appeal must be ‘ ‘ settled and signed ” by the trial judge — a stipulation that it is a copy of the record filed does not cure the defect—the certificate must state that the case contains all the evidence. A question of fact cannot be reviewed upon an appeal from a judgment, in the absence of a case “settled and signed by the judge * * * by or before whom the action was tried,” as required by section 997 of the Code of Civil Procedure, and the necessity of such a case is not obviated by a stipulation made pursuant to section 3301 of the Code of Civil Procedure, that the record is a correct copy of the one on file in the county clerk’s office; it is also necessary that the case should contain a certificate of the trial judge to the effect that it contains all the evidence gi.ven upon the trial. Appeal by the defendant, Squire Clark, personally and as executor, etc., of Susan Conklin Clark, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 6th day of March,. 1897, upon the verdict of a jury, and also from an order bearing date the 11th day of January, 1897, and entered in said clerk’s office, denying the defendant’s motion for a nonsuit and for a new trial made upon the minutes. The action was brought by the plaintiff as an heir at law of Susan Conklin Clark, deceased, to partition certain lands devised by her will to the defendant Clark, and to set aside such will as having been procured by him through undue influence, and because the testatrix had not mental capacity to dispose of her property. The jury found for the plaintiff, and from the judgment entered thereon this appeal is taken. Gabriel L. Smith and E. J. Baldwin, for the appellant. Frederick Collin and Judson A. Gibson, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : This judgment must be affirmed for the following reason: The record before us is not such as permits us to examine and pass upon the question of fact upon which the appellant relies for a reversal. If the appellant desires this court to review a question of fact “ he must * * * make a case and procure the same to be settled and signed by the judge * * * by or before whom the action was tried.” This is explicitly required by section 997 of the Code of Civil Procedure, and a stipulation of parties waiving it, will not avail. (Bonnefond v. De Russey, 73 Hun, 377; Reese v. Boese, 92 N. Y. 632.) In the record before us it nowhere appears that any case has ever been settled, or that one has ever been signed by the trial judge. There is a stipulation signed by the respective attorneys on page 371 of the record, but that does not touch this question. It does not even purport to waive the settlement of the case or the signature of the trial judge. That stipulation is evidently ¡nade pursuant to the provisions of section 3301 of the Code, which allows parties to stipulate that the record filed in this court is a correct copy of the one on file in the county clerk’s office. It takes the place and avoids the expense of a certificate of the county clerk to that effect. The utmost effect we can give to such stipulation, therefore, is that it certifies to us that the record before us is a true copy of a record made in this action and filed in the clerk’s office of Chemung county. Examining that record, we do not find that it has ever been presented to the trial judge for settlement', or that he has ever signed it or ordered it filed. And further than that, we do not find in that record any statement, or even claim, that it contains all the evidence given upon the trial. Much less do we find the certificate of the judge that it does. Unless it appears that the record before this court contains all the" evidence given upon the trial, we cannot reverse the conclusion of the trial court, or jury, on the ground that it is against the weight of evidence. (Flood v. Cain, 78 Hun, 378.) And the fact must be made to appear by the certificate of the trial court. (Gorham Mfg. Co. v. Seale, 3 App. Div. 515, 517.) In these two particulars this record is clearly defective, and the appellant’s claim that the evidence does not warrant the verdict of the jury cannot be sustained by us. For this reason, therefore, the judgment must be affirmed, with costs. All concurred, except Smith, J., not sitting. Judgment and order affirmed, with costs.