
    Ann McManus, Respondent, v. The Western Assurance Company of Toronto, Canada, Appellant.
    
      iHesettlemertt of -a-case on appeal — right of the trial judge to have the occurrences on the trial, and his views, properly stated.
    
    A trial'judge Who has ascertained that a case does not state the occurrences upon the trial in accordance with the facts, has authority, upon notice to the parties or their counsel, to correct such case, even after it has been filed pursuant to a ' stipulation .of the Attorneys. The attorneys cannot, by agreement between themselves, successfully insist upon presenting an incorrect record of his judi-cial action.to.the.appellate court.
    
      An appraiser’s certificate, which' the trial judge states positively has not been read or used in evidence, and has, therefore, not influenced the jury, should not he included in the record of a case on appeal.
    Statements of facts in the opinion may be required to be printed in order that the Appellate Division shall be informed of the view of the fac.ts upon which the trial judge has based his legal conclusions.
    Appeal by the defendant, The Western Assurance Company of Toronto, Canada, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the' 17th day of October, 1898, resettling the case upon appeal, and also from judge’s orders made respectively on the 1st, 24th and 30th days of December, 1898, relating to such resettlement.
    
      George A. Stearns, for the appellant.
    
      Charles Wehle, for the respondent.
   Willard Bartlett, J.:

This appeal brings up an acrimonious controversy concerning the settlement of a case on appeal. The action of the trial judge in the matter is expressed in four orders. One of these is a Special Term order and the others are orders of a judge out of court. The appellant presents for our consideration a number of technical questions of practice, the determination of which is not necessary for the protection of his rights, upon the appeal. In reference to these questions, it is enough to say that we think a tidal judge has authority to correct a case, even after it has been filed pursuant to a stipulation of the attorneys, if the judge ascertains that it does not state the occurrences upon the trial in accordance with the facts. Of course, it is incumbent "upon him, under such circumstances, to give notice to the parties or 'their counsel, but they cannot by any agreement between themselves successfully insist upon presenting an incorrect record of his judicial action to the appellate court.

There are but three questions of any considerable importance arising out of the resettlement in this case: (1) Whether a certificate of certain insurance appraisers should be set out as having been offered in evidence by the plaintiff; (2) whether the- statement of facts in the first part of Judge Gaynor’s opinion, denying defendant’s motion for a new trial, should be printed in the appeal book ; and (3) whether the ruling of the court, permitting an amendment of the complaint at the beginning of the trial and defendant’s exception thereto, ought to have been stricken out.

(1) As to the appraisers’ certificate, the trial judge states positively that it was not read or used in evidence. As the jury did hot hear it they'could not have been influenced by its contents, and, therefore, it should not go into the record.

(2) As to the statement of facts in the opinion, the judge might properly require it to be printed, in order that the Appellate Divisr ion should be informed of the view of the facts upon which die based his legal conclusions.

(3) As to the proceedings in reference to the amendment of the complaint, we understood counsel upon the oral argument to say that, with the approval of the trial judge, it had been agreed that this portion of the proposed case should be restored to the case on file.

The Special Term of October 17, 1898, not -only directed that certain corrections should be made in the case, but until the case was so corrected it restrained the defendant and its attorney and counsel from “moving the same for argument or arguing the game on appeal.” The order should be modified by striking out this portion, and as thus modified affirmed.

. The .judge’s order of December 1, 1898, so far as it settles the, case and orders the same on file, should be affirmed. This affirmance, however, does not relate to the 1st paragraph of the paper, in which the learned judge speaks of the conduct of defendant’s counsel as defiant and disobedient, and refers to the printed case as a false case. These remarks constitute an expression of judicial: opinion unusual in an order, and we do not pass upon them in upholding the judicial fiat which follows. , . ■

The judge’s orders of December 24 and 30,1898, relate to recitals in the preceding order, aqd should also be affirmed.

All concurred.

Special Term order modified by striking out that portion which restrains counsel from moving the case, for argument or arguing the same on appeal, and as thus modified affirmed; judge’s orders of December 1, 24 and 30, 1898, affirmed. No costs of this appeal to either party. i  