Majority
p. 321Healey et al. v. Terry. (City Court of New York, General Term. October 31, 1889.) Argued before McAdam, O. J., and Holme, J.
Headnote
Appeal—Record.On settlement of the case on appeal, it is error for the trial judge to arbitrarily strike from appellants’ exhibit any words which form a part of it.
Appeal from special term.
Action by William,W. Healey and others against ICate M. Terry. Plaintiffs appeal from an order striking certain words out of the case.
C. J. Hardy, for appellants. J. Fromme, for respondent.
We are satisfied that the words stricken put were part of plaintiffs’ Exhibit 3, and cannot be detached therefrom. Where the facts are disputed, the certification of the trial judge as to what occurred is conclusive, (Green v. Shute, ante, 69;) but where the facts are undisputed, or are indisputable, the trial judge cannot arbitrarily strike out evidence regarded by the appellant as material to his appeal, (Rubber Co. v. Rothery, 112 N. Y. 592 , 20 N. E. Rep. 546 .) The words stricken out formed part of plaintiffs’ Exhibit Ho. 3, and the appellants had the right to have them printed as part and parcel thereof. It follows that the order striking them from the case must be reversed, with costs.
Cases cited
- New York Rubber Co. v. Rothery 112 N. Y. 592 p. 321