Majority
p. 136Joseph Hughes, App’lt, v. David M. Koehler, Resp’t. (New York Common Pleas, General Term, Filed January 2, 1894)
Headnote
Appeal—Reversal,Where the questions of law, raised hy an appeal from an order vacating a judgment, rest upon disputed facts, the court may reverse the order and send the matter to a referee to take proof of those facts and report to the special term.
Appeal from an order vacating a judgment against the defendant.
Edward W. S. Johnston, for app’lt; Charles Goldzier, for resp’t..
The questions of law raised by this appeal rest entirely upon disputed as contends, stenographer’s minutes upon the first trial contained the entire stipulation relating to the dismissal of the complaint against him, then the order is clearly right, and should be sustained. If, on the other hand, the stipulation to dismiss the complaint as to him was coupled with the further agreement that judgment should be taken against him for" the possession of the premises, or if, as appellant contends, thereafter the judgment, as entered, was sub
p. 137
mitted to and approved by his attorney, which does not seem to be denied by the papers presented on this appeal, then the order is erroneous. Under the circumstances of the case, we think the order should be vacated, and the matter sent to a referee to take proof as to the facts before referred to, and to report the. same to the special term of this court; the costs of this appeal to the appellant to abide the result
All concur.