Opinion
December, 1898.
Langbein Bros. Langbein, for appellant.
F.V. Johnson, for respondent.
The action is brought to recover damages for personal injury, occasioned to the infant plaintiff, by the carelessness and negligence of the defendant's servants.
At the trial the plaintiff's complaint was dismissed; and from such dismissal this appeal is taken.
To the proposed case on appeal thirty-two amendments were proposed, all of which the trial judge allowed, thereby eliminating from the proposed case a large quantity of testimony actually taken, leaving hardly any testimony upon which the appellate court could base any judgment or exercise any judgment.
It is true, that the stenographic minutes of the official stenographer were not produced nor submitted to the trial judge, on the settlement of the case. We cannot dictate to the trial judge how the case shall be settled, and we do not propose to do so. But the party is, as of right, entitled to have the case show the actual facts, as they really happened on the trial, so that the appellate court can decide the case upon a record, which is absolutely correct.
In the face of the five affidavits submitted on this motion, we maintain, that the trial judge should have refused the settlement of the proposed case, unless the minutes of the official stenographer should be submitted to him. Foster v. Standard National Bank, 21 Misc. 8.
The order appealed from is reversed, without costs, and case remitted to the trial judge for resettlement
McCARTHY and OLCOTT, JJ., concur.
Order reversed, without costs, case remitted to trial judge for resettlement.