87 A.D. 54 | N.Y. App. Div. | 1903
The proposed case on appeal contained a statement at length of motions for judgment alleged to have been made at the close of the case by defendants Fanny McKane, George W. Roderick, Theodore McKane and George FT. McKane, and specifying the grounds of such motion. Plain tiff’s proposed amendment struck out the whole of that portion of the case upon the ground that no such motions were ever made. The trial court allowed the amendment and struck out the matter as improperly in, the case. George W. Roderick thereupon moved to resettle the case and to restore the rejected matter to its place in the case, and from the order denying this motion this appeal is taken. There was a conflict in the. affidavits as to what occurred upon the trial, and the learned justice presiding holds that- the formal record as made by the stenographer shows substantially what occurred upon the trial, and the stenographer’s minutes do not disclose the matters which the plaintiff seeks to have-inserted.
The rule is well settled that “ in the settlement of a case, what occurred upon the trial must be ascertained from what the presiding justice finds to be the truth. (Matter of Tweed v. Davis,
' The order appealed from should be affirmed, with ten dollars costs and disbursements.
Goodrich, P. J., Hirschberg and Hooker, JJ., concurred; Jenks, J., not sitting.
Order affirmed, , with ten dollars costs and disbursements.
Tweed v. Davis.