Opinion
March 10, 1952.
Present — Nolan, P.J., Carswell, Adel, Wenzel and Schmidt, JJ.
Motion by defendants to dismiss appeal denied, without costs. The appeal is ordered on the calendar for the June Term, commencing May 26, 1952, unless plaintiff is able to perfect the appeal for an earlier term. Cross motion by plaintiff to require defendants' attorney to furnish plaintiff with a copy of a written examination before trial for the purpose of incorporating in the minutes of the trial and the record on appeal the portions of such examination which were read or quoted at the trial or, in the alternative, to have this court order a new trial, denied, without costs. If any prior written examination was used on the trial and became part of the trial minutes, if the stenographer cannot transcribe his notes without such examination, and if it cannot now be found, plaintiff is not precluded from preparing and settling his record on appeal before the Trial Justice. (See Nikkari v. Faubel, 273 App. Div. 901; Kay v. Kay, 277 App. Div. 797; also 6 Carmody on New York Practice, § 256, p. 201.)