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Tenesei v. Societa Italiano Abruzzo Citro Gabriele Rosetti

50 N.Y.S. 685 Court N.Y. App. Term Decision date 1898-03-28 English

Contents

Majority

p. 685
TENESEI v. SOCIETA ITALIANO ABRUZZO CITRO GABRIELE ROSETTI.
(Supreme Court, Appellate Term.
March 28, 1898.)

Headnote

Appeal prom Justice—Amendment op Return.
Where the return from a justice on appeal fails to show exhibits apparently admitted in evidence, a reargument will be ordered pending an amendment of the return.
Appeal from district court.
Action by Mauro Tenesei against Societa Italiano Abruzzo Citro Gabriele Eosetti in justice court. From a judgment for defendant, plaintiff appeals. Reargument ordered.
Argued before BEEKMAN, P. J., and GILDERSLEEVE and GIEGERICH, JJ.
Sewards & Sewards, for appellant.
Thomas J. Purdy, for respondent.

The justice, in rendering judgment for the defendant, decided that plaintiff had failed to comply with the by-laws, and, furthermore, that his sickness was not such as to prevent him from working. The return fails to show whether the by-laws of the society were admitted in evidence, but the following appears towards the end of the stenographer’s minutes: “Articles 67 and 71 and arti cíes 80 and 82 to be looked at.” We assume from this that the said provisions were considered by both parties as having been admitted in evidence, and therefore a copy of the same should be annexed to the return, in order that we may determine whether such finding of the justice is supported by the evidence. For these reasons, a reargument must be ordered, the return to be amended meanwhile.