
    James Henry, an Infant, by Christopher Henry, His Guardian ad Litem, Respondent, v. Interurban Street Railway Company, Appellant.
    First Department,
    November 5, 1906.
    Practice — motion to resettle case in first department — Special Term should refer order to trial justice.
    A defendant, not satisfied with the settlement of a case on appeal, may move for a resettlement on additional affidavits. In the first department such motion should be made returnable at the Special Term, Part I, and if the justice who tried the case is not sitting at said term the presiding justice should refer the motion to him for decision.
    Appeal by the defendant, the Interürban Street Railway Company, from an order of the Supreme Court, made at the Hew York Special Term, and entered in the office of the clerk of the county of Hew York on the 22d day of August, 1906.
    
      Bayard H. Ames, Anthony J. Ernest of counsel [Henry A. Robinson, attorney], for the appellant.
    
      Henry W. Unger of counsel [Levy & Unger, attorneys], for the respondent.
   Per Curiam:

This is an appeal by the defendant from an order of Special Term denying the defendant’s motion to remit the case on appeal for resettlement to the justice who presided at the trial of the case, and denying a motion for the resettlement.

The defendant, if not satisfied with the settlement of the case had a right to move, on additional affidavits, for a resettlement. Such a motion requiring to be made upon notice was properly returnable at' Part I, Special Term. As the settlement of a case on appeal is to be made by the ju.stice presiding at the trial, if he was not sitting at Special Term, Part I, when the motion was returnable,' it was the duty of the justice so presiding to refer said motion to said trial justice for decision. The refusal in the case at bar to so remit the motion and to undertake to determine it at Special Term was error.

The order appealed from should be reversed, with ten ■ dollars costs and disbursements, and the original motion directed to be . remitted for decision to the justice who presided at the trial of the action.

Present—O’Brien, P. J., Ingraham, Clarke, Houghton and Scott, JJ.

Order reversed, with ten .dollars costs and disbursements, and motion remitted for decision to the justice who presided at trial of action. ■ x  