Dearing v. Pearson — 26 N.Y.S. 74

Majority

p. 74

DEARING v. PEARSON.

(City Court of New York, General Term.

November 27, 1893.)

Headnote

Appeal—Practice—Settlement op Case.

Settlement of the case on appeal by the trial judge is conclusive where the facts are disputed. Green v. Shute, (City Ct N. Y.) 7 N. Y. Supp-. 69 , followed.

Appeal from special term.

Action by Nina H. Dearing against Aylma Y. Pearson. From art order denying a motion for a resettlement of a proposed amendment of the case on appeal, defendant appeals.

Affirmed.

Argued before VAN WYCK, McCARTHY, and NEWBURGER, JJ.

Smith, Bowman & Close, for appellant.

David Leventritt, for respondent.

This is an appeal from an order made by the trial justice herein, denying the defendant’s motion for a resettlement of a proposed amendment to the case on appeal from the judgment. This court has held in Green v. Shute, 7 N. Y. Supp. 69 , that the action of the trial justice in" settling a case on appeal cannot be reviewed where there is a dispute as to the facts. In this case it appears that there were a number of conflicting affidavits as to the facts, and the trial justice determined it. The order must therefore be affirmed, with costs. All concur.