Opinion
April Term, 1899.
George A. Stearns, for the appellant.
Charles Wehle, for the respondent.
This appeal brings up an acrimonious controversy concerning the settlement of a case on appeal. The action of the trial judge in the matter is expressed in four orders. One of these is a Special Term order and the others are orders of a judge out of court. The appellant presents for our consideration a number of technical questions of practice, the determination of which is not necessary for the protection of his rights upon the appeal. In reference to these questions, it is enough to say that we think a trial judge has authority to correct a case, even after it has been filed pursuant to a stipulation of the attorneys, if the judge ascertains that it does not state the occurrences upon the trial in accordance with the facts. Of course, it is incumbent upon him, under such circumstances, to give notice to the parties or their counsel, but they cannot by any agreement between themselves successfully insist upon presenting an incorrect record of his judicial action to the appellate court.
There are but three questions of any considerable importance arising out of the resettlement in this case: (1) Whether a certificate of certain insurance appraisers should be set out as having been offered in evidence by the plaintiff; (2) whether the statement of facts in the first part of Judge GAYNOR'S opinion, denying defendant's motion for a new trial, should be printed in the appeal book; and (3) whether the ruling of the court, permitting an amendment of the complaint at the beginning of the trial and defendant's exception thereto, ought to have been stricken out.
(1) As to the appraisers' certificate, the trial judge states positively that it was not read or used in evidence. As the jury did not hear it they could not have been influenced by its contents, and, therefore, it should not go into the record.
(2) As to the statement of facts in the opinion, the judge might properly require it to be printed, in order that the Appellate Division should be informed of the view of the facts upon which he based his legal conclusions.
(3) As to the proceedings in reference to the amendment of the complaint, we understood counsel upon the oral argument to say that, with the approval of the trial judge, it had been agreed that this portion of the proposed case should be restored to the case on file.
The Special Term of October 17, 1898, not only directed that certain corrections should be made in the case, but until the case was so corrected it restrained the defendant and its attorney and counsel from "moving the same for argument or arguing the same on appeal." The order should be modified by striking out this portion, and as thus modified affirmed.
The judge's order of December 1, 1898, so far as it settles the case and orders the same on file, should be affirmed. This affirmance, however, does not relate to the 1st paragraph of the paper, in which the learned judge speaks of the conduct of defendant's counsel as defiant and disobedient, and refers to the printed case as a false case. These remarks constitute an expression of judicial opinion unusual in an order, and we do not pass upon them in upholding the judicial fiat which follows.
The judge's orders of December 24 and 30, 1898, relate to recitals in the preceding order, and should also be affirmed.
All concurred.
Special Term order modified by striking out that portion which restrains counsel from moving the case for argument or arguing the same on appeal, and as thus modified affirmed; judge's orders of December 1, 24 and 30, 1898, affirmed. No costs of this appeal to either party.