Doane Steam Pump Co. v. Toch — 92 N.Y.S. 35

Majority

p. 35

DOANE STEAM PUMP CO. v. TOCH.

(Supreme Court, Appellate Term.

January 23, 1905.)

Headnote

1. Imperfect Record—New Trial.

Where the trial judge is unable to return the minutes of a portion of the trial, the parties are unable to perfect the record under Municipal Court Act, Laws 1902, p. 1581, c. 580, § 319, and the stenographer who took the evidence cannot be found, a new trial is necessary.

Appeal from Municipal Court, Borough of Manhattan, First District.

Action by the Doane Steam Pump Company against Jacob L. Toch. From a judgment for plaintiff, defendant appeals. Reversed.

Argued before SCOTT, MacLEAN, and DAVIS, JJ.

E. J. Heilner, for appellant.

Laurence Arnold Tanzer, for respondent.

The trial judge in this case certifies that he is unable to-return the minutes of that portion of the trial that took place upon June 6 and 7, 1904. To supplement the return herein, and in accordance with section 319 of the Municipal Court act (Laws 1902, p. 1581, c. 580), the respective parties to this action have handed up affidavits purporting to contain the testimony of the witnesses "who were sworn upon the two days above mentioned. These affidavits are conflicting not only upon the question at issue, but it is also set forth in the opposing affidavits that (in several important respects) the defendant’s witnesses did not testify upon the trial as they now testify in their affidavits aforesaid. It is also claimed by the plaintiff and set forth in his opposing affidavits that certain exhibits now handed up, and purporting to have been marked as having been received in evidence, were not so received

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or marked upon the trial. It is substantially conceded that the stenographer’s minutes taken upon the two days of the trial above mentioned cannot be obtained owing to the inability to discover the whereabouts of the stenographer who took them. In their absence, and in view of the conflicting nature of the affidavits submitted, this case should be sent back for a new trial.

Judgment reversed and new trial ordered, with costs to abide the event. All concur.