Goldenson v. Lawrence — 48 N.Y. St. Rep. 636

Majority

p. 636

Eva L. Goldenson, Resp’t, v. Chester B. Lawrence et al., App’lts.

(City Court of New York, General Term,

Filed October 24, 1892.)

Headnote

Motions and ordees—Settlement.

While the court on appeal may, where the facts are undisputed, direct the resettlement of a case or order to conform thereto, where the facts are-disputed the certificate of the judge as to what occurred before him must he accepted as conclusive.

Appeal from an order made May 31, 1892, resettling former order, etc.

Goodrich, Deady & Goodrich, for app’lts; David Leventritt, for resp’t.

Where the facts are undisputed, the court, on, appeal, may direct the resettlement of a case or order to conform, to the facts. New York Rubber Co. v. Rothery, 112 N. Y., 592 ; 21 St. Rep., 841 ; S. C., second appeal, 119 N. Y., 633 ; 29 St. Rep., 37 ; Gleason v. Smith, 34 Hun, 547 ; Healey v. Terry, 26 St. Rep., 929 .

But here the facts are disputed. The certificate of the judge as to what occurred before him must be accepted as conclusive. Green v. Shute, 26 St. Rep., 114 ; Healey v. Terry, supra. This rule applies to the present contention, Smith v. Grant, 11 Civ. Pro., 354, and requires that the order appealed from must be affirmed, with costs.

Van Wyck and McCarthy, JJ., concur.