
    Abel Crook, Resp’t, v. George E. Hamlin et al., Impl’d, App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 28, 1893.)
    
    Trial—Failure op court to hear all the testimony.
    A large part of the testimony in this action was taken, by agreement, before the stenographer during the absence of the judge. On the summing up each counsel stated the facts upon which he relied, but there was no dispute about the facts, and the court did not require the testimony so taken to be written out. Held, that this did not make a mistrial, and that a motion to set aside the judgment on that ground was properly denied.
    Appeal from order denying motion to vacate a judgment of the'special term on the ground that the court neither heard the testimony of the witnesses, save a small portion thereof, nor read the same.
    Vanderpoel, Cuming & Goodwin (Henry Thompson, of counsel), for app’lts ; John L. Hill, for resp’t.
   Dykman, J.

This is an appeal from an order denying a motion to vacate the judgment in this action entered upon the decision of a judge after a trial before him at special term without a jury

The motion was made by the defendant against whom the judgment was entered, and was based upon the allegation that the trial judge did not hear all the testimony, and did not read it all because it was not written out by the stenographer by whom it was taken.

The material facts seem to be these: The trial of the action commenced on the 19th day of December, 1892, and testimony was introduced before the judge until recess. The judge did not appear after the recess, and the parties proceeded to take testimony before the stenographer by agreement during the afternoon and again the next day in the absence of the judge.

The trial was then adjourned by consent until the 80th day of December, 1892, and on that day the judge was present, some further testimony was then taken and the trial was closed; at that time the testimony taken in the absence of the judge was, "undisputed, to say the least, if it was not agreed upon.

The case was argued before the judge, and it appears that each counsel stated the facts upon which he relied, but there was no-dispute about the facts, and the judge found it unnecessary to-cause the testimony to be written out, as there was no necessity for a reference thereto.

This motion was not based upon errors committed during the trial, because such questions will be examined upon the appeal from the judgment. The claim seems to be that there has been a mistrial, or rather no trial according to legal requirements.

We cannot coincide with that view. The trial judge gathered the facts from the concession of the counsel upon the argument, and found the facts undisputed, and decided the questions of law upon that theory.

If there has been error it will be detected and decided upon the appeal, but the motion to vacate the judgment was properly denied and the order should be affirmed, with ten dollars costs and disbursements.

Barnard,- P. J., concurs; Pratt, J., not sitting.  