
    Frank Howard Cothren et al., Respondents, v. George M. Chaffee, Appellant.
    (Supreme Court, Appellate Term,
    November, 1902.)
    Municipal Court of the city of New York — Amendments to a return how obtained before September 1, 1902 — Settlement of a case on appeal unauthorized before that date — Limit of time for moving for a new trial.
    Prior to September 1, 1902, when chapter 580 of the Laws of that year went into effect, there was no authority in a justice of the Municipal Court of the city of New York to settle a case appealed therefrom, and amendments desired to his return could be obtained only by a motion for an amended return made under Code C. P., § 3055.
    
      Therefore where a defendant, who appealed in February, 1902, from a judgment of said court rendered against him in January, 1902, and procured a case on appeal to be settled by the trial justice, was dissatisfied with it as settled and moved for a resettlement or a new trial, the Appellate Term considered that, as there was no authority for the settlement, no appeal could lie to it from an order of the Municipal Court denying a resettlement, and that the motion for a new trial must be denied because it had not been made within five days after entry of the judgment as required by L. 1896, ch. 748.
    Appeal from an order made in the Municipal Court of the city of New York, tenth district, borough of Manhattan, denying defendant’s motion for an order granting a new trial herein or in the alternative for an order resettling the case herein on appeal.
    Chapter 580 of the Laws of 1902, went into effect on September 1, 1902.
    Clarke & Clarke, for appellant.
    Edgar Gilman Pratt, for respondents.
   Freedman, P. J.

This action was tried on January 21, 1902. On January 28, 1902, judgment was rendered in favor of the plaintiffs against the defendant. On February 5, 1902, the defendant appealed from the judgment. Subsequently, and before the return herein was made, the stenographer who took the evidence upon the trial died, without transcribing his minutes of such evidence. Thereafter the appellant herein made and served a proposed case on appeal, containing the testimony and objections and exceptions taken during the trial. Amendments thereto were proposed by the respondents, and the proposed case and amendments were submitted to and settled by the trial judge.

At the time the appellant offered the proposed case for settlement he had the notes of the deceased stenographer taken at the trial in his possession —-1 whether he had then caused them to be transcribed does not appear. Subsequently, however, and after the case had been settled, he procured one Bridges to transcribe the notes, and his (Bridges’) interpretation of them differing apparently from the settled case, the appellant made Bridges’ version of the testimony a basis of his motion aforesaid, for a resettlement of the case or a new trial. This case comes under the provisions of the statutes in force prior to the passage of chapter 580 of the Laws of 1902, and until that act went into effect there was no provision for the settlement of a case by a justice of the Municipal Court upon appeal. Amendments sought to be made to a justice’s return (which return was required to, contain the evidence taken on the trial, section 3053, Code of Civil Procedure), could only be obtained by a motion for an amended return under section 3055, Code of Civil Procedure. If, for any reason, the justice could not make a return, the case on appeal was to be determined by the provisions of section 3056, Code of Civil Procedure. It will be seen, therefore, that the appellant herein sought Lis own mode of procedure in the lower court, in order to have the return upon appeal contain the testimony taken at the trial, and, as appears by the return of the justice, for he states that “ The following is the testimony taken upon the trial of this case as agreed upon by the attorneys for the respective parties,” which statement is corroborated by admissions contained in the appellant’s brief on this appeal, after preparing a case, and amendments thereto were submitted, agreed that the trial judge should settle the same, which was done pursuant to such agreement. So far as the appellant’s motion for a resettlement of the case on appeal is concerned he has no warrant, either in equity, law or practice.

His motion for a new trial is equally untenable. A motion to vacate, set aside, or modify a judgment must be made within five days “after its rendition. Consol. Act, § 1367, as amended by Laws of 1896, chap. 748.

The order appealed from is affirmed, with costs.

MacLean and Blanchard, JL, concur.

Order affirmed, with costs.  