Kirsch v. Halbach — 120 N.Y.S. 740

Majority

p. 740

KIRSCH v. HALBACH.

(Supreme Court, Appellate Term.

January 21, 1910.)

Headnote

Courts (§ 190^[1] )—Municipal Court—Appeal—Affidavits of Evidence—Con- , ' flict of Evidence—New Trial.

Under Municipal Court Act (Laws 1902, p. 1581, c. 580) § 319, which provides that in certain cases the appellate court may determine an appeal upon affidavits of evidence taken at the trial, etc., where the stenographer’s minutes of a trial were lost, and the affidavits filed by the attorneys, giving the substance of the testimony of several witnesses sworn, showed a conflict upon many material points, the court on appeal will order a new trial, without costs.

[Ed. Note.—For other cases, see Courts, Dec. .Dig. § 190.^[1] ]

Appeal from Municipal Co'urt, Borough of Manhattan, Second District.

Action by Clara Kirsch, an infant, by her guardian ad litem, against Josephine Halbach. Judgment for plaintiff, and defendant appeals.

Reversed, and new trial ordered.

Argued before GIEGERICH, DAYTON, and LEHMAN, JJ.

Nadal, Jones & Mowton (Edward P. Mowton, of counsel), for appellant.

Abraham Oberstein, for respondent.

The stenographer’s minutes :of the trial in this case having been lost, it comes before this court upon affidavits as to what took place upon the trial in accordance with the provisions of section 319 of the Municipal Court Act. The affidavits filed herein are those of the attorneys for the respective parties, who were present at the trial, and who gave the names of the several witnesses sworn and the substance of their testimony. This method of presenting the testimony given upon the trial of a case is necessarily very unsatisfactory, and it is clear that there was a sharp conflict of evidence in the court below upon many material points. We think the interests of justice will be best subserved by ordering a new trial, without costs.

Judgment reversed, and new trial ordered, without costs to either party.