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Auerfeld v. Feuer

98 N.Y.S. 687 Court N.Y. App. Term Decision date 1906-04-27 English

Judges Argued before SCOTT, P. J., and TRUAX and BISCHOFF, JJ,

Contents

Majority

p. 687
AUERFELD v. FEUER et al. (two cases).
(Supreme Court, Appellate Term.
April 27, 1906)

Headnote

A ppeal — Matters Not in Record — Judicial Notice — Preliminary Motion. On appeal, the court will not take judicial notice of the truth of statements made on a preliminary motion raising objection to the trial of an action before the justice then holding court.
Appeals from Municipal Court, Borough of Manhattan, Fourth District. .
Actions by Michael Auerfeld against Abraham Feuer and another. From judgments in favor of plaintiff, defendants appeal.
Affirmed.
Argued before SCOTT, P. J., and TRUAX and BISCHOFF, JJ,
Joseph Winkelfeld, for appellant.
Benjamin Reass, for respondent.

Notwithstanding the objections made by the defendants’ attorney, that attorney remained in court and took part in the trial, so that there was a trial in a court of competent jurisdiction before a justice who-was at least a de facto justice. We cannot take judicial notice, of the truth of all the statements made on the preliminary motion, when the defendants objected to the trials of the actions before the justice who was then holding court.

The judgments appealed from are affirmed, with costs.