Majority
p. 1000(22 Misc. Rep. 557.) MASON v. TIETIG. (City Court of New York, General Term. February 14, 1898.) Argued before FITZSIMONS, C. J., and CONLAN, J.
Headnote
Appeal—Remand for Resettlement.Where it is made to appear to the justice, at special term of the city court, that a case on appeal was not properly settled, he may send it back to the trial justice to be resettled, if the latter deem it proper to do so, but he has no power to direct the trial justice to resettle it in a particular manner.
Appeal from special term.
Action by Frederick T. Nason against Frederick Tietig. From an order directing the trial justice to resettle case, plaintiff appeals.
Modified.
C. H. ,& J. A. Young and J. A. Terry, for appellant.
James S. Lehmaier, for respondent.
The order appealed from must be modified. It directs the trial justice to resettle the case on appeal in a particular manner. In so doing the special term justice exceeded his powers. If it appeared to Mm that the case on appeal was not properly settled, it was within his power to order that it be sent back to the trial justice to resettle the same, if the trial justice deemed it proper to do so. The order appealed from goes further than that, and directs a resettlement in certain particulars.
It must be modified so as to conform to our view, and, as so modified, is affirmed, without costs.