Dearing v. Pearson — 55 N.Y. St. Rep. 774

Majority

p. 774

Nina H. Dearing, Resp’t, v. Alma Y. Pearson, App’lt.

(City Court of New York, General Term,

Filed November 27, 1893.)

Headnote

Appeal—Case—Settlement.

The action of the trial justice in settling a case on appeal, upon conflicting affidavits as to the facts cannot he reviewed.

Appeal from order denying motion for a resettlement of a proposed amendment to a case on appeal.

Smith, Bowman & Close, for app’lt; David Leventritt, for resp’t.

This is an appeal from an order made by the trial justice herein, denying the defendant’s motion for a resettlement of a proposed amendment to the case of appeal from the judgment.

This court held in Greene v. Shute, 26 St. Rep., 114 , that the action of the trial justice in settling á case on appeal cannot be reviewed where there is a dispute as to the facts.

In this case it appears that there were a number of conflicting affidavits as to the facts and the trial justice determined it.

The order must, therefore, be affirmed, with costs.

Van Wyck and McCarthy, JJ., concur.