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Acme Rubber Mfg. Co. v. Buckley

117 N.Y.S. 629 Court N.Y. App. Term Decision date 1909-06-25 English

Delivered by SEABURY, J.

Contents

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p. 629
ACME RUBBER MFG. CO. v. BUCKLEY.
(Supreme Court, Appellate Term.
June 25, 1909.)

Headnote

Appeal and Error (§ 1135[1] )—Record—Showing Error.
It being impossible to determine, from the record on appeal from an order denying a motion to resettle the case on appeal from the judgment, whether the case was correctly settled, the order cannot be disturbed.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4454, 4455; Dec. Dig. § 1135.[1] ]
Appeal from City Court of New York, Special Term.
Action by the Acme Rubber Manufacturing Company against Leander J. Buckley. From an order denying a motion for resettlement of the case on appeal from the judgment for plaintiff, defendant appeals.
Affirmed.
Argued before GIEDERSLEEVE, P. J., and MacLEAN and SEABURY, JJ.
Samuel P. Goldman, for appellant.
Ryon & Smith, for respondent.

The defendant appeals from an order denying a motion made by him for a resettlement of the case on appeal from the judgment entered herein. Upon the record presented to us it is impossible to determine whether the justice in the court below was correct in the manner in which he settled the case on appeal. As neither the pleadings nor the stenographer’s minutes are included in-the record, we are not informed as to what the litigation is about. It is true that the record -contains the proposed amendments and the ruling of the justice upon them, and in some instances extracts from the stenOg

p. 630
rapher’s minutes have been incorporated in the record on appeal. These extracts from the record, do not, however, give the appellate court sufficient information as to the questions in, dispute to enable it to pass intelligently upon them.' In some instances it appears that the justice who settled the case struck out certain objections and exceptions; but whether these objections and exceptions were made or taken by the respondent or appellant does not appear. The record on appeal from the order denying the motion to resettle the case shows no reason why the case should be resettled, and the ordej appealed from should therefore be affirmed.

The order appealed from is affirmed, with $10 costs and disbursements. All concur.