Reiss v. Linder — 153 N.Y.S. 954

Majority

p. 954

REISS v. LINDER.

(Supreme Court, Appellate Term, First Department.

June 14, 1915.)

Headnote

Appeal and Error <§=708—.Review—Record.

Where the question whether a judgment should be amended depended on the testimony, and the record, returned by the clerk as containing the. testimony, proceedings, and judgment, had only the charge, the matter cannot be reviewed, and the return will be remitted to the lower-court.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 2948; Dec. Dig. <§= 708.]

<§=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Appeal from Municipal Court,- Borough of Manhattan, Seventh District.

Action by Edward S. Reiss against Herbert J. Linder. There was. a judgment for plaintiff, which he deemed was insufficient, and he applied for an amendment. The application being denied, plaintiff appeals from the judgment. Return remitted to the lower court.

Argued May term, 1915, before GUY, LEHMAN, and WHITAKER, JJ.

Andrew E. McNickle, of New York City, for appellant.

Percival E. Jackson, of New York City, for respondent.

A judgment was rendered in favor of the plaintiff herein, after a trial by a jury on January 28, 1915. The summons contained an indorsement claiming that the defendant was liable to arrest and imprisonment. The complaint claimed damages for the conversion of certain personal property owned by the plaintiff. The-judgment as entered contained no provision for the arrest and imprisonment of the defendant upon execution, and on the 11th day of February, 1915, the plaintiff made an application to the lower court upon notice to have the judgment amended in that respect. This application was refused for want of power; the application not having been made within the time prescribed by section 254 of the Municipal Court Act (Laws 1902, c. 580). Thereupon the plaintiff appealed from the judgment and asks this court to so amend the judgment.

Whether or not the judgment should be so amended depends upon-the character of the proof adduced upon the trial. This testimony is not contained in the record before us. Although the clerk of -the-

p. 955

Municipal Court certifies that he returns “the testimony, proceedings, and judgment in the action,” the return has only the charge to the jury of the trial justice.

Return remitted to the lower court, for such action as the plaintiff may be advised.

WHITAKER, J., concurs. LEHMAN, J., concurs in result.