that he had no recollection of making any special memorandum or having his attention ealled to this $225.35 dog fund after his settlement with Hill until after the last annual town meeting.

The plaintiff also introduced other evidence on the question as to how much was due on the note. Main's testimony was that it amounted to between $350 and $400. There were some other circumstances proved on the part of the plaintiff which, it is claimed, strengthen the above evidence. The defendant testified on his own behalf that his predecessor turned over to him his note and money enough to amount to $243.58; also to the effect that nothing further was paid to him. His testimony also tended to show that the actual settlement was made on the 22d day of March, five days after the receipt was drawn, and that it was made on the supervisor's books; that he signed the receipt after the business was finished, without attention being called to its contents, and that he never knew the contents of the receipt. The book, among other things, contained the following entry: "March 22d. Balance handed over to my successor, F. A.

Hill, $243.58."

The evidence as a whole tended to show that the defendant's predecessor drew the receipt on the 17th day of March at his own house for the purpose of being signed at the actual settlement, and that it was drawn in such a way as to cover all the property and moneys he had in his hands as supervisor. The contention of the defendant is that when the settlement was actually made, the book alone was considered, and the settlement was based upon it; the signing of the receipt was a matter of form without an examination, and that all that was paid to him was $243.58. The findings of the trial justice were in favor of the defendant's contention. He reached the conclusion after seeing and hearing the witnesses that the defendant was right. The opinion of the justice shows he did not find that the dog money was in Main's hands. Such a finding was not necessary to a determination of the case and the learned justice properly held that as Main was not a party to the action, there should be no finding which might prejudice him.

In Roosa v. Smith, 17 Hun, 138, it was held in substance that the tribunal before which a trial is had occupies a much better position to pass upon the credibility and weight of evidence than the appellate court. Some of the reasons assigned were that the testimony being given before him viva voce, he could estimate the honesty, frankness, freedom from bias, and give credit or distrust as he thought the witnesses deserved in passing judgment upon the personal appearance, temper and manners while on the stand, and had looked at all the reasonable probabilities suggested by personal contact with the parties and witnesses during their examination, and that there were many imperceptible and intangible matters before the trial court which could not be before the appellate. To the same effect are Wheeler v. Miller, 24 Hun, 541, and Baird v. The Mayor, etc., 96 N. Y., 567, where it was held that to justify a reversal, it must appear that the proofs so clearly preponderated in favor of a contrary conclusion that it could be

said with a reasonable degree of certainty that the trial court erred in its conclusions.

But upon the re-argument of this appeal a question not presented or considered is now brought to our attention. It is insisted by the learned counsel for the appellant that a new trial should be granted on the ground that certain erasures, as alleged, appear upon the aforesaid supervisor's book in connection with the account as settled and adjusted thereon as hereinbefore stated. Although the book was put in evidence on the trial and was in the same condition as it now appears, still the attention of the trial justice was not called to those erasures by the learned counsel for the appellant, nor was any comment or suggestion made upon their significance or suspicious character, nor was any reference made by counsel to the same upon the first argument of this appeal.

The case was carefully and ably tried by vigilant and distinguished counsel, still those erasures were looked upon as of such trifling importance that they attracted no attention on the trial. The erasures consist in the careful obliteration of certain figures on the supervisor's book. What those figures were before they were erased cannot now be determined; but it is insisted that it is fair to assume that before obliteration those figures gave credit to the former supervisor for the dog money, and that the defendant, with fraudulent intent, deliberately erased the same so that the supervisor's book would fail to show all the moneys received by the defendant. If the attention of the trial justice had been called to this subject, or if the point had been made on the trial, it may be that the defendant could have fully explained it when his attention was called to the subject, and that all suspicion of fraud or misconduct on the part of the defendant could have been removed on the trial.

It is a familiar rule that points not raised or presented on the trial will not be considered on appeal. Marston v. Gould, 69 N. Y., 221; Tooley v. Bacon, 70 id., 34; Distin v. Rose, 69 id., 122– 123; Day v. Town of New Lots, 107 id., 148; 11 N. Y. State Rep., 361; Langley v. Wadsworth, 99 N. Y., 61; Thayer v. Marsh, 75 id., 340; Adams v. Irving National Bank, 116 id., 606; 27 N. Y. State Rep., 733.

The reason for this rule is apparent. The object and purpose of a trial is to enable the parties to present and litigate every question within the issues. If either party is dissatisfied with a finding upon a question of fact, or a ruling upon a question of law, he has a remedy by appeal. In other words, he can only obtain a review of a finding or ruling of the court below; but if there was no finding or ruling by a trial court, there is nothing to review. It is no answer to say that the court on appeal has the right to look into and consider the evidence presented on the trial. This is true; but it is equally true that if the objection, if made, might have been obviated on the trial, it will not be considered.

The above cases and numerous others which might be cited show that where a question appears in the case which is of such a

character that the difficulty could not have been obviated if attention had been called to it, the point may be considered on appeal. If, on the other hand, it might have been cured or explained if objection had been made or attention called to it, and nothing of the kind appears in the case, the appellate court will not consider it. If it were otherwise, cunning or ingenuity might keep in reserve controlling questions during the trial, which if raised might have been obviated, then if the result is adverse, make them available on appeal.

Courts, therefore, have uniformly held that all objections which might have been obviated must be distinctly presented or they will not be considered on appeal. The present case is a marked illustration of the propriety of this rule. The evidence, when presented on the trial, in the particulars now objected to, was in the same form as now. If attention had been called to its suspicious character, it might have been fully explained by the accused or suspected party. But when it is suggested for the first time on appeal, if the court acts upon it the party may be seriously prejudiced and have the imputation of fraud rest upon him and judgment in his favor reversed on the ground of his fraud or forgery, when, if the point had been made below, it might have been explained without imputing any wrong or fraud upon either party. If the appellate court gives effect to the erasures, although it does not appear what was erased, how or under what circumstances such erasures were made, or by whom, to the extent that it believes it would have reached a conclusion on the original hearing that those suspicious ear-marks needed an explanation, the party sought to be charged should have an opportunity to make such explanation. But if the appellate court grants a new trial, based upon its opinion of the suspicious character of this evidence, when the point was not raised below, it assumes the functions of the trial court, without being able to afford an opportunity to explain or remove suspicions. If such a rule obtains, litigants never can determine what questions of fact not presented on the trial may be successfully sprung upon them on appeal.

It is not seriously claimed that the findings of the trial court could be disturbed except for the erasures. It is believed there is no precedent for granting a new trial under such circumstances. It is a familiar rule that error cannot be presumed. This is especially so when the charge involves either fraud or forgery. But for the appellate court to assume the functions of the trial court, and then presume either fraud or forgery, is certainly without precedent.

The judgment should be affirmed.

Judgment reversed and new trial granted, costs to abide event.

In the Matter of the Estate of THOMAS VANDEVORT, Deceased. (Supreme Court, General Term, Fifth Department, Filed October 23, 1890.) EXECUTORS AND ADMINISTRATORS-COSTS OF IRREGULAR ACCOUNTING.

The executors G. and V. were cited by legatees to show cause why the

legacies should not be paid. G. filed a verified statement of his accounts and balance in his hands, and V. petitioned for a judicial settlement of his account. Citations were issued, and both proceedings consolidated and referred, V. having filed objections to G.'s account, which resulted in surcharging him by a considerable sum. Subsequently the reference was vacated, the entire proceeding as to G. dismissed, and G. was charged personally with the costs of the reference and witness fees. Held, that as G. was not shown to be responsible for the improper order of reference, the latter part of the order, charging him personally with the costs, was

erroneous.

APPEAL from so much of an order of the surrogate of Ontario county, dismissing a proceeding herein, as charged Peter Garlock, one of the executors, personally, with the disbursements of the proceeding.

E. K. Burnham, for app'lt; Frank Rice, for resp't.

DWIGHT, P. J.-We are unable to find in the opinion of the learned surrogate, which accompanies this record, any very satisfactory reason for the disposition made by him of the question of costs. It appears from the narrative of the proceeding contained in the opinion that, in the year 1886, the two executors, Peter Garlock and Gilbert M. Vandevort, were cited, on the petition of two of the legatees, to show cause why the legacies of the petitioners should not be paid. Garlock answered by filing a verified statement of his receipts and disbursements on account of the estate and of the balance in his hands, and Vandevort by a petition for a judicial settlement of his account. On that petition citations were issued to all persons interested in the estate, and an order was made for a consolidation of the two proceedings.

The present surrogate points out that this order was improperly made by his predecessor, under a mistaken view of the provisions of § 2728, Code Civil Procedure, and that the original proceeding, on the petition of the legatees, should have been dismissed under the provisions of § 2718. He does not intimate that the executor, Garlock, was in any way chargeable with the error, which seems to have been chiefly to his prejudice. For had the original petition been dismissed Garlock would have been relieved of all responsibility in the proceeding, which would have continued as to the executor Vandevort alone, for a judicial settlement of his account. As it was, under the order of consolidation, the surrogate then in office entertained objections to Garlock's account, filed by two of the legatees, one of whom was the executor Vandevort, and objections were also filed to the account of Vandevort by several of the persons interested.

The issues thus joined in the two proceedings were sent to a referee for hearing. The opinion states and counsel in their briefs seem to agree, that this was done by separate orders of reference, though but one order appears in the record before us, and if separate orders were made it would seem to have been in disregard of the order of consolidation. The order of reference contained in the record, like the report of the referee and the order of the present surrogate, from a portion of which this appeal is taken, is entitled as in the matter of the judicial settlement of the N. Y. STATE REP., VOL. XXXIII.

119

accounts of Garlock, as one of the executors, etc.; while as the surrogate very properly holds, there was no proceeding for the judicial settlement of Garlock's account, since there had been no petition or citation for such a settlement, Garlock's account having been filed merely in answer to the petition of the two legatees for an order to show cause why their legacies should not be paid.

The hearings before the referee were spread over a period of two years, and resulted in a report which surcharged Garlock's account by a considerable sum and entailed an expense for referee's fees alone of $250. This expense was, it seems, paid by the contestant Gilbert M. Vandevort, and it is for this disbursement, increased by a small sum paid by him for witnesses' fees, that the order appealed from directs that he be reimbursed by the executor Garlock personally.

The matter was brought before the present surrogate by a motion in behalf of Gilbert M. Vandevort, for a confirmation of the report of the referee. The motion was opposed by the executor, Garlock, and a counter motion was made in his behalf for a dismissal of the entire proceeding as to him. The result was that the motion to confirm the report was denied; the order of reference was vacated and the entire proceeding, as to the executor Garlock, was dismissed, and at the same time Garlock was charged personally with the disbursements of the proceeding, including those above mentioned of the contestant Vandevort. The surrogate declined to award costs, by way of counsel fees, to either party, remarking in his opinion that it would be unjust to charge such costs "as well as the disbursements upon the estate at large, considering the numbers of parties interested in the funds who took no part in and were uninvited to the contest," and he adds, "nor does it seem just to inflict Garlock personally with all expense, since much of it resulted from the order of reference for which he does not seem to have been responsible." It is difficult. to see why this consideration was not also effective to relieve Garlock, personally, from the payment of the fees of the referee and of the contestant's witnesses. But the surrogate says Garlock "submitted" to the reference "after permitting without resistance the filing of objections to his account which occasioned the contest."

But if Garlock was in fault for submitting to the filing of the unauthorized objections, what of Vandevort, who filed them? Shall the party who submits to an error of procedure which is sanctioned by the court pay costs to the party at whose instance the error is committed? But we see no reason to hold either of the parties in this case responsible for any error of procedure. They no doubt both proceeded in good faith as they were advised.

Counsel for the respondent Vandevort contends for the affirmance of the order in the respect appealed from on the ground of facts outside of the proceeding which they seem to regard as established by the report of the referee. None of these facts are referred to in the opinion of the surrogate and clearly none of them are established for any of the purposes of this appeal. The report of