Barnard v. Gantz — 23 N.Y.S. 260

Majority

p. 260

(69 Hun, 104.)

BARNARD v. GANTZ et al.

(Supreme Court, General Term, Second Department.

May 8, 1893.)

Headnote

Appealable Order—Amendment op Case.

An order directing the insertion in a printed case of the words: “The foregoing contains all the evidence upon the trial,” is within the discretion of the court, and not reviewable on appeal.

• Appeal from special term, Kings county.

Action by John T. Barnard, as temporary administrator of Ann E. Crouse, deceased, against John F. Gantz and others. From an order directing an insertion to be made in the printed case, defendants appeal.

Affirmed.

Argued before BARHARD, P. J., and DYKMAJST and PRATT, JJ.

Hatch & Wickes, (L. E. Warren, of counsel,) for appellants Clark and Hall.

Sidney Williams, for appellant Gantz.

George G. Barnard, for respondent.

This is an appeal from an order made at special term directing the insertion in the printed case these words: “The ■foregoing contains all the evidence upon the trial.” The cause has been tried before a referee, who dismissed the complaint. That judgment was reversed by the general term, ( 21 N. Y. Supp. 349 ,) and. now the defendants have appealed to the court of appeals.-

The statement that the case contained all the evidence was omitted through inadvertence, and the plaintiff is fearful that the omission may imperil his success in the court of appeals. We think the granting of the order was a wise exercise of the discretion of the special term. The rule requiring the statement is technical at best, and the courts will not permit technicalities to prevail over or stifle merits. The order should be affirmed, with costs and disbursements. All concur.