Majority
p. 148CANZI v. CONNER. N. Y. Superior Court, General Term; January, 1878.
Headnote
Amendment oe Case on Appeal.—Judge’s Minutes.—Calendar. —Stenographer’s Notes.The settlement of a ease on appeal is left very much to the discretion of the judge presiding at the trial.
Where, on the settlement of a case on appeal, the judge allowed an amendment striking out an exception which did not appear on the judge’s minutes or stenographer’s notes, although appellant’s counsel made affidavit that it was taken at the trial,—Held, that it was properly allowed.
On appeal from an order made on the settlement of a case, striking out an exception of appellant, by which nothing was left of appellant’s case,—Held, that the cause should be stricken from the calendar, and judgment rendered in respondent’s favor for non-service of the case on appeal.
Appeal from an order allowing an amendment to a proposed case on appeal.
The action was by Helen J. Canzi against William C. Conner, sheriff, et al. The plaintiff appealed from the judgment therein.
On the settlement of the case by Mr. Justice Sanford, the defendants’ counsel moved to amend it by striking out an exception that had been set forth in the following language, viz. : “ Plaintiff excepts to each and every one of the charges of the court.” The affidavit of the counsel of plaintiff who tried the case was read, which stated that he took the exception, and so told the stenographer, but the latter did not put it in his minutes.
No papers were read or used on the part of the respondent, for it was conceded that the stenographer’s minutes did not show an exception.
The motion to amend by striking out said exception to the charge was granted.
p. 149
Plaintiff and appellant then appealed from this order, claiming that under section 174, subdivisions 3 and 4, of the Code of Procedure, a judge at chambers should have allowed the exception under any circumstances, and that according to the facts as they appeared on the hearing the exception should be allowed to stand ; that the order striking it out was appealable under section 350 of the Code of Procedure; and that it affected a substantial right, for without such exception no review of the judge’s charge could be had.
At the time for the hearing of this appeal the respondents moved under the rules, on affidavits and notice of motion, that the cause be stricken from the calendar and judgment rendered in their favor for non-service of the case on appeal. Appellant’s affidavit showed that this appeal was pending from the order of settlement. Both questions were heard at the same time.
W. S. Wolf , for appellant.
Vanderpoel, Green & Cuming and Sullivan, Kobbe & Fowler, for respondents.
The settlement of a case is left very much to the discretion of the judge presiding at the trial.
In the case at bar the amendment must be deemed to have been allowed in accordance with the judge’s minutes, which corresponded with the stenographic minutes, and hence it was allowed in accordance with the preponderance of evidence bearing upon the real fact.
The appeal from the order should be dismissed, with costs, and as it was conceded in the argument that in that contingency nothing was left of appellant’s case, the motion made by respondents should be granted, with costs.