Atkinson v. New York Rys. Co.

Order reversed, and motion granted, with $10 costs to appellant to abide event, upon condition that the defendant1 within 10 days after service of this order, with notice of entry, give a stipulation in writing, in accordance with the oral stipulation made by defendant's counsel upon the argument, that defendant will offer no evidence as to plaintiff's physical condition prior to the accident, nor any medical testimony as to the nature and extent of her injuries, and shall further stipulate that the evidence of any of plaintiff's witnesses may be taken before a referee at the city of Rochester and read in evidence with like force and effect as though given by such witnesses upon the trial, with the right to defendant to appear before the referee by counsel and cross-examine such witnesses, and in the event of defendant's failure so to stipulate the order appealed from is affirmed, with $10 costs and disbursements.

ROBSON, J., dissents, and votes for affirmance.