Henry v. Interurban St. Ry. Co. — 100 N.Y.S. 811

Majority

p. 811

(115 App. Div. 352)

HENRY v. INTERURBAN ST. RY. CO.

(Supreme Court, Appellate Division, First Department.

November 5, 1906.)

Headnote

1. Appeal—Record—Defects—Resettlement—Authority of Trial Court.

Appellant, dissatisfied with the settlement of the case on appeal, has a right to move on additional affidavits for a resettlement.

[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 2547, 2548.]

2. Same—Proceedings.

A motion for a resettlement of a ease must be made on notice returnable at special term, part 1.

3. Same.

Since the settlement of the case on appeal must be made by the justice presiding at the trial, so that, if he is not sitting at Special Term, . Part 1, when a motion for a resettlement is returnable, it is the duty of the justice presiding to refer the motion to the trial justice for decision.

p. 812

Appeal from Special Term, New York County.

• Action by James Henry, an infant, by Christopher» Henry, his guardian ad litem against the Interurban Street Railway Company. From an order denying a motion to remit the case on appeal for resettlement, and denying a motion for a resettlement, defendant appeals. Reversed.

Argued before O’BRIEN, F. J„ and INGRAHAM, CLARKE, HOUGHTON, and SCOTT, JJ.

Henry A. Robinson (Bayard H. Ames and Anthony J. Ernest, of counsel), for appellant.

Levy & Unger (Henry A. Unger, of counsel), for respondent.

This is an appeal by the defendant from an order of Special Term denying the defendant’s motion to remit the case on appeal for resettlement to the justice who presided at the trial of the case, and denying a motion for the resettlement. The defendant, if not satisfied with the settlement of the case, had a right to move, on additional affidavits for a resettlement. Such a motion requiring to be made upon notice was properly returnable at Part 1, Special Term. As the settlement of a case on appeal is to be made by the justice presiding at the trial, if he was not sitting at Special Term, Part 1, when the motion was returnable, it was the duty of the justice so presiding to refer said motion to said trial justice for decision. The refusal in the case at bar to so remit the motion, and to undertake to determine it at Special Term, was error.

The order appealed from should be reversed, with $10 costs and disbursements, and the original motion directed, to be remitted for decision to the justice, who presided at the trial of the action.