McCafferty v. Kelly — 4 N.Y. Super. Ct. 637

Majority

p. 637

McCafferty v. Kelly.

Headnote

On an appeal from a justice’s court, the court below must make a return of all the testimony and proceedings, where a return is ordered. It is not sufficient to make a return as to the particulars in which the affidavits are conflicting.

February 24, 1849.

This was an appeal from the marine court. On moving the

p. 638

cause for argument, it appeared that the affidavits were conflicting in some particulars, and a return had been ordered. The return made by the court below, set forth only the testimony in respect of which the parties differed in their affidavits.

P. Mulvey, for the appellant.

Nash & Donohue, for the respondent.

The court below must make a return of all the testimony and proceedings, when a return is ordered, although the affidavits conflict only in a few particulars. Such is the provision of the code. When a return is made, we look solely to that. We cannot look into the affidavits also. If the return here, be insufficient to present the whole case, the parties must call for a further return.

A further return was ordered.