Opinion of the Court, by FREEDMAN, J.

In this connection it may not be out of place to point out that, notwithstanding numerous changes have been made in section 272 of the Code, which relates to trials by referees exclusively, referees were at no time since the year 1851 relieved from the duty of embodying in their report a statement of the facts found. To rectify the error into which Judge CoмSTOCK had fallen, in Johnson v. Whitlock, 13 N. Y. [3 Kern.] 344, in extending the then existing and above-mentioned exemption of the judges from such duty to referees, the supreme court, soon after the decision of that case, enacted a rule, in which the duty of preparing findings was expressly insisted upon (Rule 32 of 1858, reenacted in 1870 as Rule 39). But the very language employed indicates that the requirement was not intended to embrace the case of a nonsuit. The rule commences by stating that on a hearing before referees the plaintiff may be nonsuited, or his complaint may be dismissed, in like manner as upon a trial, at any time before the cause has been finally submitted to the referees for their decision. In such case the referees shall report according to the FACT, and judgment may thereupon be perfected by the defendant. But upon a trial, the referees are required, in their decision and FINAL report, to state the facts found by them and their conclusions separately. That the word "trial," as here used, means a trial upon the merits, may be seen from the further provision, which requires that a copy of such findings shall be served with the notice of the judgment, and that the time within which exceptions may be taken to the report shall be computed from the time of such service. As at the time of the nonsuit both parties are before the referee, and the plaintiff has the opportunity to except at once, the requirement last referred to caunot have been intended to apply to the case of a dismissal of the complaint upon plaintiff's undisputed testimony (see Dainese v.

Statement of the Case.

Allen, 14 Abb. Pr. N. S. 363; S. C., 45 How. Pr. 430, where the two classes of exceptions contemplated by section 268 of the Code, and the mode and time of taking them, are discussed).

There was no irregularity in the entry of the judgment in this case. If plaintiffs desired a review upon the evidence, they were at liberty to prepare, within the time prescribed by law, a case, or exceptions, and, under section 268 and rule 41, to request the insertion of such findings therein as they deemed necessary for the protection of their supposed rights. In such case the judge's refusal to find, followed up by an exception to such ruling, would, on a review of the whole case, have presented a proper question for consideration on appeal (Van Slyke v. Hyatt, 46 N. Y. 259; Beck v. Sheldon, 48 Id. 365; McKeon v. See, 4 Rob. 449). Their neglect so to do cannot be cured in the manner attempted.

The order appealed from should be affirmed, with costs.

CURTIS and SPEIR, JJ., concurred.

JAMES BISHOP, ET AL., PLAINTIFFS AND APPELLANTS, . THE EMPIRE TRANSPORTATION COMPANY, DEFENDANT AND RESPONDENT.

APPEAL, EXTENSION OF TIME FOR, WHAT DOES NOT OPERATE AS.

1. A motion to set aside a judgment does not operate to extend the time for appealing therefrom.

Before FREEDMAN, CURTIS and SPEIR, JJ.

Decided January 31, 1874.

Motion to dismiss plaintiffs' appeal from judgment.

Statement of the Case.

John L. Cadwalader, for the motion.

Edward L. Andrews, opposed.

BY THE COURT.-FREEDMAN, J.-Judgment having been entered in this action upon the dismissal of plaintiffs' complaint on the trial in favor of the defendant, the plaintiffs, after receipt of written notice of the judgment, purposely permitted the time within which to appeal, to expire. They preferred to rely for success upon a motion which they made, to vacate the judgment for irregularity in the entry thereof (see ante, p. 12), but failed in the attempt. Having made their election, they should be held to the consequences. The motion to set aside the judgment, did not affect the time for appealing (Renouil v. Harris, 2 Sandf. 641). The time within which an appeal may be taken, is fixed by statute, and it cannot be extended by the courts. This proposition is so firmly established that it requires no citation of authorities in support thereof.

The notice of appeal having been served too late, the appeal must be dismissed, with costs.

CURTIS and SPEIR, JJ. concurred.

HENRY B. HEWITT, PLAINTIFF AND APPELLANT, v. SAMUEL C. MORRIS, DEFENDANT AND RE

SPONDENT.

The general rule with respect to the proof of all private writings is, that when an instrument is attested by a subscribing witness, the witness ought to be produced at the trial to prove it, and when the original instrument has been lost or destroyed, and the witness

Statement of the Case.

is known and his testimony can be obtained, he must be called. This latter contingency calls for the most rigorous application of the ancient rule of the English law of evidence, that the witness must be called.

Admission of a copy of the lost instrument in evidence, without calling the subscribing witness, when it appears the witness could have been easily produced, is clearly erroneous.

The objection on the trial that the witness must be produced to prove "his attestation" instead of "to prove the execution of the instrument," is sufficient, and the exception to the overruling of this objection by the court at the trial, is well taken.

"Attestation and execution" of an instrument are spoken of in the authorities as the same thing (2 Bl. Com. 307).

The exception taken on the trial to the admission in evidence of the copy of the chattel mortgage, was well taken (2 Phil. on Ev. Cow. & H. Notes, 557; Bissel v. Pearce, 28 N. Y. 256; Hodnett v. Smith, 2 Sweeny, 406, and other authorities cited in the opinion of the court). Where an action has been brought to recover personal property, after the usual forms of pleading, and the complaint does not disclose the source or the character of the title of the plaintiff to the property, the defendant is not in a position to set up matter in his answer in avoidance of a chattel mortgage or other written instrument, upon which the plaintiff may seek to found his title or ownership of the property sought to be recovered, and on the trial the defendant must be allowed to attack the validity of the written instrument proven. These facts present a case where the law allows the matter in avoidance to be proven without its being set up in the answer. This becomes necessary in furtherance of justice (Ruckman v. Cowell, 1 Com. R. 508).

A jury cannot take with them on their retirement for deliberation any writings, other than such as have been received in evidence before them (Howland v. Willetts, 9 N. Y. 175). In this case the exception of defendant's counsel embraced not only the memorandums of the plaintiff's counsel as to the value of property, but also his own memorandums relating to the same subject, delivered by him to the jury and taken by them at his request.

The exception was not well taken. It should have been limited at least to his opponent's memorandum.

Before FREEDMAN, CURTIS, and SPEIR, JJ.

Decided January 31, 1874.

Appeal by the plaintiff, from an order at special

Opinion of the Court, by Curtis, J.

term, granting a new trial. The facts and exceptions appear fully in the opinion of the court.

F. C. Cantine, for appellant.

Henry Morrison, for respondent.

BY THE COURT.-CURTIS, J.-The action is to recover the value of certain personal property, alleged to have been converted by the defendant. The answer sets up a general denial, and also that a portion of the property in question was levied upon for the non-payment of rent of a house, owned by defendant, under a warrant of distress, pursuant to the laws of New Jersey.

At the trial, the plaintiff testified that having a chattel mortgage on the property in question, of which he had previously demanded payment, he went to Long Branch, packed the property in boxes, and placed it in a wagon, which the defendant stopped, and had the property replaced in the house. The plaintiff called a witness who testified, he had received the mortgage to foreclose and mislaid it, and could not find it. No objection was interposed as to the sufficiency of the proof of loss. The plaintiff produced a paper, which he testified was a copy of the original mortgage, and the words "James Smith" were a copy of the signature of "James Smith." the subscribing witness to the mortgage, who was his clerk, and whom he had left in his store that morning. The defendant's counsel objected to the admission of the copy, in the absence of the subscribing witness to prove his attestation. The objection was overruled, and the defendant excepted. The paper purported to be a mortgage from one Francis Winchester to plaintiff, to secure two thousand five hundred dollars on demand, covering (inter alia) property of the description. referred to by the plaintiff in his testimony.