
    MOELLHAUSEN, ' Appellant, v. LIPSCHITZ, Respondent.
    (Supreme Court, Appellate Division, Second Department.
    November 22, 1907.)
    Action by Rene Moellhausen against Samuel Lipschitz.
   PER CURIAM.

This is a motion to vacate a judgment in the Municipal Court of the city of New York presided over by Justice Rosenthal, for the reason that the court stenographer who took the testimony, John Norton, is permanently too ill to write out his notes, and that his notes were so badly taken that neither himself nor any one else can accurately read them. We cannot vacate the judgment for such a reason. It is the duty of the justice to make up a case as best he can and he should not neglect that duty. This failure to produce the stenographer’s minutes in this same court has now persisted for more than a year and a half, as appears by motions to dismiss appeals made to this court, and if further persisted in we shall feel it our duty to appoint a referee to take proof of the causes of these delays. Let the attorney for the appellant apply to the justice to make a return here and if he neglects it for five days let the matter be brought to our attention.  