Opinion
October 24, 1913.
Leo Levy, for the appellant.
Henry Waldman [ Harlan Moore with him on the brief], for the respondent.
This is an appeal from an order denying a motion to resettle the case on appeal with respect to four proposed amendments thereto, numbered 6, 8, 12 and 13.
The courts do not look with favor upon contests of this character, and the orderly administration of the law requires that the determination of the court at Special Term with regard to what occurred during the trial shall be conclusive, unless there is a manifest abuse of power. ( Ditmas v. McKane, 87 App. Div. 54.)
With regard to the proposed amendments 6, 8 and 12, neither the case as actually proposed nor the case as settled by the trial justice conforms to actual occurrences as disclosed by the stenographer's minutes. Exact justice may be done the parties by inserting therein a transcript of the stenographer's minutes of the colloquy between court and counsel respecting the questions then being considered.
Proposed amendment 13 strikes out from the proposed case on appeal the words "Defendant moved to dismiss for a direction of a verdict, motion denied; exception."
The moving affidavits assert that while this trial was going on another jury in the rear of the court room was being selected in the case that was to follow; "that the evidence in the case with two exceptions was closed at the hour of the noon recess; that upon return from lunch at the hour indicated by the Court for reconvening the parties presented themselves and * * * defendant sought to have a certain concession appear in the record, which was agreed to, and which now appears therein; that the court stenographer had not returned from lunch at that time; that with the concession the case on both sides was deemed closed and deponent [defendant's counsel] moved for a dismissal of the complaint and a direction, which motions were denied; that it was then found that the court stenographer was not there and deponent [defendant's counsel] asked the Court to have the concession and the motions placed on the record, which the Court said would be done; that thereupon both sides were directed to retire to the anteroom with the jury and there sum up the case so that the Court might proceed with the other trial. * * * The directions of the Court in this respect were obeyed; and just as the jury and counsel were about to retire to the anteroom the official court stenographer appeared and was notified by deponent with respect to the concession and the motion and stated that he would place the same upon the record."
The concession appears in the stenographer's minutes, but no record of any motion to dismiss or to direct a verdict, and the trial justice states that in accordance with his recollection no such motion was made. With regard to this, the recollection of the trial justice, sustained by the stenographer's minutes of the trial, must control.
The order appealed from should be modified by amending the proposed case on appeal so far as amendments 6, 8 and 12 relate thereto, by substituting therefor a transcript of the stenographer's minutes of the trial, and as thus modified, it should be affirmed, without costs.
JENKS, P.J., BURR, THOMAS, CARR and RICH, JJ., concurred.
Order modified by amending the proposed case on appeal so far as amendments 6, 8 and 12 relate thereto, by substituting therefor a transcript of the stenographer's minutes of the trial, and as thus modified affirmed, without costs.