Majority
p. 929Warren W. Healey et al., App’lts, v. Kate M. Terry, Resp’t. (City Court of New York, General Term, Filed October 31, 1889.)
Headnote
Case — Settlement oe — Part oe exhibit cannot be stricken out.On settlement of a case on appeal the court has no power to strike out words forming part of an exhibit of the appellant. The latter has the right to have them printed as a part of such exhibit.
Appeal by plaintiffs from order striking out from case, at page 21, fol. 62, the words: “ The above carriage on storage at $5 per month.”
C. J. Hardy, for app’lts; J. Fromme, for resp’t.
We are satisfied that the words stricken out 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, 26 N. Y. State
p. 930
Rep., 114, 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. N. Y. Rubber Co. v. Roth ery, 112 N. Y., 592 ; 21 N. Y. State Rep., 841. The words stricken out formed part of plaintiff’s exhibit Ro. 3, and the appellant 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.
McAdam, Ch. J., and Holme, J., concur.