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Trumbley v. New York Cent. & H. R. Railroad

122 N.Y.S. 1071 Court N.Y. App. Term Decision date 1910-05-18 English

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p. 1071
TRUMBLEY v. NEW YORK CENT. & H. R. R. CO.
(Supreme Court, Appellate Division, Third Department.
May 18, 1910.)

Headnote

Appeal and Error (§ 570[1] )—Settled Case—Contents.
It is not within the province of the Appellate Division to suggest what evidence should be inserted in a settled case, or omitted therefrom; that being solely the function of the trial justice.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2546-2549; Dec. Dig. § 570.[1] ]
p. 1072
Action by William A- Trumbley against the New York Central & Hudson River Railroad Company. Judgment for plaintiff, and defendant appeals. Heard on motion to strike case from calendar.
Motion granted.
After affirmance of a judgment for plaintiff on condition of a remission of part of the recovery ( 120 N. Y. Supp. 1148 ), a motion for reargument was granted ( 120 N. Y. Supp. 1149 ), with leave to appellant to resettle case, so as to contain all the evidence, and a certificate to that effect.
John T. Norton, for the motion.
William P. Rudd, opposed.

We have heretofore granted the defendant leave to apply to the trial justice for a resettlement of the case, so as to have it appear by proper certificate that it contains all the evidence and proceedings-on the trial. It is not our province to suggest to the learned trial justice what evidence shall be inserted in the case, or omitted therefrom. That is solely his function. But we think he should settle the case in such a way that he can make such certificate, and that the parties are as a matter of right entitled thereto. Until such certificate is made, the case is not in readiness for reargument.

The motion for postponement of the argument is therefore granted.