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 *75must * * * 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.