Walker v. Baermann — 61 N.Y.S. 91

Majority

p. 91

(44 App. Div. 587.)

WALKER v. BAERMANN.

(Supreme Court, Appellate Division, Second Department.

November 28, 1899.)

Headnote

1. Appeal—Return—Lost Testimony.

Where the testimony in the lower court is not included in the return on appeal, because it has been lost, Code Civ. Proc. § 3056, authorizes the parties to the appeal to present affidavits to the appellate court showing the evidence taken upon the trial, and, upon the proof thus furnished, the appellate court is to determine the appeal as if a return had been duly made; and hence a motion to compel the trial judge to make an amended return will be denied.

2. Same—Municipal Courts.

Code Civ. Proc. § 3056, which provides that, when the justice is unable to make a return, “the appellate court may receive affidavits, or examine witnesses, as to the evidence and other proceedings taken, and the judgment rendered, before the justice; and may determine the appeal, as if a return had been duly made by the justice,” applies to appeals from the municipal court.

Appeal from special term.

p. 92

Action by Mrs. Frank Walker against Jacob B. Baermann. Judgment for plaintiff. Defendant appeals. Motion for a further or amended return. Denied.

Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.

Ashley, Emley & Rubino, for the motion.

Greenhall & Levy, opposed.

This is a motion to compel one of the justices of the municipal court of the city of New York to make a further or amended return. The evidence which was taken upon the trial is wholly omitted from the return before us. In answer to the motion it is made to appear, by the affidavits of the justice and of the official stenographer who took the testimony, that the stenographer took the minutes to the court in August last, with the intention of filing them, but has never sincebeen able to find them. The shorthand notes being-lost, he is unable to furnish a transcript of the evidence. Under these circumstances, an order compelling the justice to make a further return would evidently be ineffectual. The proper course to be pursued is prescribed by section 3056 of the Code of Civil Procedure, which provides that, where the justice is unable to make a return, “the appellate court may receive affidavits, or examine witnesses, as to the evidence and other proceedings taken, and the judgment rendered, before the justice; and may determine the appeal, as if a return had been duly made by the justice.” This provision applied to appeals from district courts in the city of New York, and now applies to appeals from the municipal court. McGovern v. Eldredge (Com. Pl.) 20 N. Y. Supp. 654 . The parties to the appeal may present affidavits to this court showing, what was the evidence taken upon the trial, and upon the proof thus furnished we will endeavor to determine the appeal, under the authority of the section cited.