Majority
p. 737Bankers Trust Company, Respondent, v. International Railway Company, Appellant.
Headnote
Appeal — record — under circumstances discretion of court should be exercised to include summation of counsel in record as aid in determining appeal.Appeal from an order of the Supreme Court, made at the New York Trial Term, and entered in the New York county clerk’s office on April 5, 1923, settling the ease on appeal, and also from an order, made at the New York Special Term and entered on May 1, 1923, denying defendant’s motion to resettle the ease on appeal.
While ordinarily the opening and closing addresses of counsel have no place in a record upon appeal, we think that in the ease before us the discretion of this court should be exercised in granting the motion for the insertion of the summation, as showing the theory upon which the case was presented to the jury, and, therefore, as a help to the court in determining the appeal. (See Matter of Eno, 182 App. Div. 889 .) The orders appealed from should, therefore, be reversed, with ten dollars costs, and the motion granted. Present—Clarke, P. J., Smith, Merrell and Martin, JJ. Orders reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.