
    COHN et al. v. HANELLIN.
    (Supreme Court, Appellate Term.
    May 16, 1907.)
    Appeal—Record—Sufficiency.
    An order in summary' proceedings, setting aside judgment for the tenant as being contrary to the evidence and law, as having been procured by fraud, and upon newly discovered evidence, on appeal must be presumed to be correct, where the testimony given at the trial has not been made a part of the return.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $ 3777.]
    Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.
    
      Summary ■ proceedings by- William Cohn and others, landlords, against Samuel Hanellin, tenant. From an order setting aside a judgment for the tenant, and granting a new trial, he appeals. Remitted.
    Argued before GILDERSLEEVE,- P. J., and SEABURY and BRADY, JJ.
    Lewis Goldberg, for appellant.
    Isidor Cohn, for respondents.
   SEABURY, J.

This appeal is taken from an order setting aside a judgment entered in summary proceedings in favor of the tenant. Judgment was originally entered in favor of the tenant, which -judgment the trial justice set aside on motion of the landlords ás being “contrary to the evidence and contrary to law, and that the same was procured by fraud on the part of the tenant, and also upon the newly discovered evidence presented in the moving papers.” The testimony given upon the trial has not been made a part of the return on this appeal, and in the absence of such testimony the order appealed from must be presumed to be correct. It is impossible for this court to determine whether the judgment which was set aside was contrary to the evidence, when the appellant has failed to have the evidence annexed to the return.

The case should be remitted to the- lower court, so that the return can be corrected. All concur.  