Burke v. Baker — 104 A.D. 26

Majority

p. 26

Mary C. Burke, as Executrix of Thomas P. Burke, Deceased, Respondent, v. Joseph F. Baker and Others, Appellants, Impleaded with, the City of New York, Defendant.

Headnote

Settlement of ce case on appeal — the recollection of the trial judge as to a colloquy on • , the trial is conclusive in the appellate court.

Where, ón the settlement of a case on appeal, a controversy arises between the counsel for the respective parties as to whether' or not a certain colloquy took place upon the trial, if the trial judge, .upon recourse tu his own recollection on the subject, decides that the colloquy in question.in fact Occurred, although it does not appear in the stenographer’s minutes, the Appellate Division will not interfere with such determination.

Appeal by the defendants, Joseph F. Baker and: others, from an order of the Supreme, Court, made at the Westchester Special Term

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and entered in the office of the clerk of' the county of Queens on the 9th day of January, 1905, denying the said defendants’ motion for a resettlement of the 97th proposed amendment to the ease on appeal and refusing to disallow said amendment.

William W. Goodrich [Nelson Smith with him on the brief], for the appellants.

Thomas F. Magner, for the respondent. .

The amendment to the proposed case on appeal of which the defendants complain is a statement of a colloquy between court and counsel upon the trial of the action, which is regarded by counsel for the appellants as a representation that they made a concession as to the issues to he tried which was injurious to the interests.óf their clients. This colloquy did not appear in the stenographer’s • minutes, but affidavits were read upon the motion for resettlement, affirming on the one hand and denying on the other that such colloquy actually took place. The learned trial judge had recourse to his own recollection on the subject, and, acting upon that, decided that the colloquy in fact occurred, and he, therefore, has permitted it to remain in the case on appeal.

Under these circumstances, it is well settled that the Appellate Division will not interfere with the record. (Ditmas v. McKane, 87 App. Div. 54 , and cases there cited.)

It is proper to ’add that we do not deem the concession set out in this amendment as injurious to the defendahts as their counsel seem to suppose it to be. The suit was brought to collect from a large number of firemen their salaries for the year 1899, which they were alleged to have assigned to the plaintiff’s intestate for value received. The answers denied the alleged assignments and pleaded further that they were procured without consideration by false, subtle and deceptive promises, which were specifically set forth. Giving all force which can properly be given'to any admission involved in the colloquy which has been mentioned, it left and leaves counsel for the defendants still at liberty to insist upon every denial and defense set up in their answers.

Even if this were not so, however, the rule.laid down in Ditmas

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v. McKane (supra) makes the recollection of the trial judge as to what occurred upon the trial conclusive upon this court under the circumstances of the case.

It follows that the' order appealed from must' be affirmed.

Hikschbebg; F. Jl, Babtlett, Jenks, Rich and Milleb, J.J., concurred. . • ; . -

Order affirmed, with ten dollars costs ;and disbursements.