
    Abel Crook, Resp’t, v. George E. Hamlin et al., Impl’d, App’lts.
    
    
      (Court of Appeals,
    
    
      Filed December 5, 1893.)
    
    
      1. Trial—Evidence not taken before court.
    The reading by the judge of the minutes of the evidence taken out of court, or of documents, may be dispensed with where counsel upon the trial or argument agree upon, or orally state to the judge, what the minutes or documents contain.
    2. Same—Mistrial.
    In such case the fact that the minutes so taken were not written out by the stenographer or presented by him to the judge does not require the judgment to be set aside on the ground of mistrial.
    (Earl and Gray, JJ., dissent.)
    Appeal from order of the supreme court, general term, second department, affirming order denying motion to vacate a judgment of the special term on the ground that the court neither heard the testimony of the witnesses, save a small portion thereof, nor read the same.
    
      Henry Thompson, for app’lts; John L. Hill, for resp’t.
    
      
      Affirming 54 St. Rep., 77.
    
   Per Curiam.

The motion is based on the ground that the case was decided by the judge without having heard or read the testimony. It is, of course, essential to a judicial trial that the evidence taken should in some form be presented to the judge before decision. The proceeding in this case was very informal, and the practice adopted was quite liable to lead to mistakes and misunderstandings both on the part of counsel and the court, to the prejudice of one or other of the parties, and ought not to be encouraged. But the judge before whom the trial was had has refused to set aside the judgment, and his order has been affirmed by the general term. The only question before us is whether there were any facts stated in the motion papers from which it could be found that the evidence taken out of court before the stenographer was brought to the attention of the judge before deciding the case. It is conceded that it was not written out by the stenographer or in any way presented by him to the judge, and it embraced a large part of the evidence in the case. But in answer to the moving affidavits the plaintiff presented an affidavit in which he stated that, although Justice Pratt was not actually present during all the time when testimony was taken, he was present during a large portion thereof, and so much as was not then heard by him was substantially conceded in the argument addressed to the court on both sides at the close of the trial.

This statement was not contradicted. The statement is to the effect that the evidence taken out of court was brought to the attention of the court on the argument by counsel on both sides, they conceding and agreeing upon the substance thereof. At least the .judge hearing the motion might so construe its meaning. It ' cannot be said as matter of law, upon this state of facts, that the evidence was not known to the court when the case was decided. The reading by the judge of the minutes of the evidence taken out of court, or of documents, may be dispensed with where counsel upon a trial or argument agree upon, or orally state to the judge what the minutes or documents contain, and for the purpose of review the minutes or documents so referred to may be incorporated in the case. Here the evidence taken before the ■court stenographer was potentially before the court, although not written out. Any disregard of the forms of administering justice, which may weaken the security of rights or subject them to prejudice from infirmity of memory, ought to be avoided when practicable. But we perceive no ground in law for interference with the decision of the motion.

The order should be affirmed, with costs.

All concur, except Earl and Gray, JJ., dissenting.  