Majority
p. 236GOTTLIEB v. FINE. (Supreme Court, Appellate Term. February 18, 1910.) Argued before SEABURY, LEHMAN, and BIJUR, JJ.
Headnote
Courts (§ 190[1] )—Municipal Courts—Review op Proceedings.Where the stenographer’s minutes in a case are lost, and the appeal comes before, the court on affidavits, pursuant to Municipal Court Act (Laws 1902, c. 580) § 319, disclosing a sharp conflict of testimony on material facts in the court below, the interests of justice will be best Sub-served by ordering a new trial.
[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.]
Appeal from Municipal Court, Borough of Manhattan, First District.
Action by Herman Gottlieb against Jacob Fine. From a judgment for plaintiff, defendant appeals.
Reversed, and new trial ordered.
Ely Rosenberg, for appellant.
Herman Gottlieb, for respondent.
The stenographer’s minutes in this case are lost, and the appeal comes before the court upon affidavits, pursuant to section 319 of the Municipal Court act. The affidavits disclose that there was a sharp conflict of testimony upon material facts in the court below. This method of disposing of such a case.upon appeal is unsatisfactory, and we think the interests of justice will be best subserved by ordering a new trial.' Kirsch v. Halbach (December App. Term, not, yet officially reported) 120 N. Y. Supp. 740 .
Judgment reversed, and new trial ordered, without costs to either party.