Volhard v. Volhard — 115 A.D. 548

Majority

p. 548

Frederick Volhard, Respondent, v. Eliza Volhard, Individually and as Executrix, etc., of Caspar Volhard, Deceased, Appellant.

First Department,

November 23, 1906.

Headnote

Case — when resettlement not interfered with on -appeal — cost of reprinting case.

A resettlement of a case by the trial judge whereby the title of the case is amended, and exhibits which had been omitted by the plaintiff are inserted, will not be interfered with by the Appellate Division.

Tlie plaintiff, however, should be required to pay the cost of reprinting the record made necessary by such amendments.

Appeal by. the^ defendant, Eliza Yolhard, individually and as - executrix, etc., from an order of the Supreme Court, made at the . Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 8th day of October, 1906.

Carl A. Hansmann, for the appellant.

Francis A. McCloskey, for the respondent.

The order appealed from resettles the case on appeal by inserting - therein an exhibit which-it is alleged was before the court upon the

p. 549

trial, and inserting also a statement of a mortgage among the “ Digest of deeds, mortgages and assignments,” and amending the title of the case wherever the same may appear in the printed papers, so that the title should conform to that in the summons and complaint. > It seems that this action was in equity; was'tried at the Special Term, and judgment entered on the 17th day of January, 1905. The case was made and settled and a stipulation signed waiving certification by.the clerk. It was alleged by the plaintiff that there was omitted from the printed case two exhibits which were overlooked by his attorney, one being an abstract from the East Brooklyn Savings Bank, and another the recital of a mortgage which he asked to have inserted in the case, and that the title of the case conform to the title in the pleadings.

This was a question to be determined by the trial judge, and I do not think that we. should interfere with him in his determination of what was before him. The form of the title of the case is of no possible consequence. I think, however, that the plaintiff should have been required to pay the costs of reprinting, the record made necessary by the amendment allowed.

It follows that the order appealed from should be modified accordingly, and as modified affirmed, without costs.

McLaughlin, Clarke, Houghton and Scott, JJ., concurred..

Order modified as directed in opinion, and as modified affirmed, . without costs. Settle order on notice.