Opinion
November Term, 1899.
This is a motion to compel one of the justices of the Municipal Court of the city of New York to make a further or amended return. The evidence which was taken upon the trial is wholly omitted from the return before us. In answer to the motion it is made to appear, by the affidavits of the justice and of the official stenographer who took the testimony, that the stenographer took the minutes to the court in August last, with the intention of filing them, but has never since been able to find them. The shorthand notes being lost, he is unable to furnish a transcript of the evidence.
Under these circumstances an order compelling the justice to make a further return would evidently be ineffectual. The proper course to be pursued is prescribed by section 3056 of the Code of Civil Procedure, which provides that where the justice is unable to make a return, "the appellate court may receive affidavits, or examine witnesses, as to the evidence and other proceedings taken, and the judgment rendered, before the justice; and may determine the appeal, as if a return had been duly made by the justice."
The provision applied to appeals from District Courts in the city of New York, and now applies to appeals from the Municipal Court. ( McGovern v. Eldredge, 48 N.Y. St. Repr. 692.) The parties to the appeal may present affidavits to this court showing what was the evidence taken upon the trial; and upon the proof thus furnished we will endeavor to determine the appeal, under the authority of the section cited.
Affidavits to be presented as directed in opinion per curiam.