Opinion
December 7, 1906.
Reynolds, Stanchfield Collin [ Alexander D. Falck of counsel], for the appellant.
J. Courtney T.E. Courtney, for the respondent.
The case on appeal was agreed upon by counsel and presented by them to the justice who presided at the trial, who was then confined at his home in his last sickness. He signed the order settling the case pursuant to such agreement. Shortly after the justice died. The case had been prepared pursuant to the stenographer's minutes by a clerk in the office of the defendant's attorneys. When the attorney who tried the case examined it he for the first time discovered the alleged error, and this motion was promptly made at Special Term.
The plaintiff, while in the employ of the defendant, in assisting in unloading a carload of lumber, was injured, as he alleged, by reason of the negligence of one Sawyer, who he claimed was superintending the work. The court charged the jury, among other things, that an employee has the right to assume that the master has performed his duty in a reasonable manner to make the place at which the employee is working a reasonably safe and suitable place for the performance of the work. The case and stenographer's minutes show that the defendant's counsel requested the court to charge that the car "was a place" to work within that rule. The court declined to so charge, but left it for the jury to say whether it was a reasonably safe place. Defendant's counsel then made the request, "likewise to charge that it was not a part of the ways, work and machinery under the Employers' Liability Act of the State of New York," which the court charged. Defendant's counsel, who tried the case, and his assistant both swear that the request to charge was that the car "was not a place" in which to work instead of that it "was a place," and they produce the original minutes of counsel from which the requests were made. The stenographer swears that he intended to report correctly, but that counsel may have used the word "not" in the request and he may not have heard or understood the same, and may have made an error in reporting the request. One of the plaintiff's attorneys swears that the request was taken by the stenographer in the language used by counsel. The counsel who assisted in trying the case for plaintiff makes no affidavit. The case was tried upon both sides by able counsel, and it is apparent that defendant's counsel did not intend to make the request as reported by the stenographer. He may have inadvertently left out the word "not," although the next request to charge and the ruling of the court support the defendant's contention that the request was incorrectly reported.
The rule that the action of the trial justice settling a case on appeal cannot be reviewed only applies where it reasonably appears that he decided the disputed matter upon his recollection or understanding of the proceedings had before him. ( Zimmer v. Metropolitan Street R. Co., 28 App. Div. 504; Marjulies v. Goldstein, 84 N.Y. Supp. 475.) Here the trial justice, upon his sick bed, merely signed the order settling the case as stipulated by counsel. This motion was decided upon the papers by a justice who had no other knowledge of the facts.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to amend the case on appeal granted, without costs.
All concurred, except COCHRANE, J., dissenting.
Order reversed, with ten dollars costs and disbursements, and motion to amend the case granted, without costs.