139 N.Y.S. 305 | N.Y. App. Div. | 1913
This appeal is from an order denying appellant’s motion to resettle a case on appeal and to allow a proposed amendment so that it will contain an exception to the refusal of the trial court to charge as requested by appellant. The exception was in the proposed case on appeal, but was stricken out upon the settlement of the case upon the ground as stated in the memorandum of the learned justice at Special Term : “ Case and amendments settled — I must allow the 9th amendment. Stenographer’s Minutes show no exception taken or intimátion that counsel was not satisfied with the response to the request.”
The affidavit of the attorney who "represented the appellant at the trial, as well as that of his assistant, state that the • exception was taken. The assistant district attorney averred that to the best of his recollection no exception was taken.
A party to an appeal is entitled to have his case show the facts as they really happened on the trial, and should not be prejudiced by an error or an omission of the stenographer. The duty is upon the trial judge to pass upon the accuracy of the record. The minutes of the stenographer are entitled to great weight, but they are not conclusive. . (Otto v. Young,
It is beyond our power to dictate as to how a case should be settled, and we do not presume to do so, but we cannot assume that the ruling was based upon the personal recollection of the trial justice, refreshed or aided by other means, in view of the record before us.
The order of. the Special Term must, therefore, be reversed and the case remitted to the trial justice for resettlement.
Jenks, P. J., Thomas, Caer and Woodward, JJ., •concurred.
Order of Special Term reversed and case remitted to the trial justice for resettlement.