
    HARLEM BRIDGE, M. & F. RY. CO. v. TOWN BOARD OF WESTCHESTER et al.
    (Supreme Court, General Term, First Department.
    May 17, 1895.)
    Appeal—Considering Stipulation not in Record.
    On appeal from an order granting an extra allowance, made after a discontinuance of the action, a stipulation that the discontinuance should be without prejudice to the rights of the parties may be considered. 37 N. E. 634, followed.
    Appeal from special term, New York county.
    Action by the Harlem Bridge, Morrisania & Fordham Railway Company against the town board of Westchester and others for an injunction. From orders granting extra allowances, plaintiff appeals.
    Affirmed.
    Argued before VAN BRUNT, P. J., and FOLLETT, J.
    W. N. Cohen, for appellant.
    A. B. Cruikshank, for respondents.
   VAN BRUNT, P. J.

This action was begun in June, 1892, for the purpose of obtaining an injunction to restrain the defendant from interfering with the plaintiff in building and operating a street-surface railroad, etc. A preliminary injunction was granted at the commencement of the action pending the hearing of a motion to continue the same pendente lite. Upon argument this motion was granted, and an order continuing the injunction during the péndency of the action was entered. An appeal from such order was taken to the general term. Issues of fact were joined by the service of answers of all the defendants except two, who demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action. Subsequently a motion for discontinuance was made by the plaintiff, and would seem tó have been granted by an order dated February 27, 1893, which does not appear to be contained in the record. On the 7th of March, 1893, an order was entered reciting that upon reading the order of February 27, 1893, and upon reading another order of the 7th of March, 1893, vacating the injunction order (which last-mentioned order is also conspicuous for its absence from the record), and upon reading and filing two certain bills of costs adjusted upon notice, and the receipt by defendants’ attorneys of the due payments by plaintiff’s attorneys of said costs, and reciting that it appeared that the terms imposed by one of the previous orders had in all respects been duly complied with by said plaintiff, except as to the extra allowance to be thereafter disposed of, and that the plaintiff was, under the provisions of said order, entitled to the final order of discontinuance therein, it was ordered that the action be discontinued without further costs to either party as against the other. The defendants thereupon moved for extra allowances, and such motions were denied, and orders entered thereon. An application was subsequently made to the justice who had decided the motions to resettle the orders so as to contain leave to renew the motions, which was denied. It does not appear that any order was entered upon such denial. The defendants then moved for leave to renew the original motion upon additional affidavits, and also for the relief originally asked for. Leave to renew was granted, and the motion for an extra allowance was also granted. From the orders granting the allowance the plaintiff appealed to the general term. These orders were reversed by the general term on the ground that the court had no power to grant an extra allowance after the action had been discontinued. An appeal from the order of the general term was thereupon taken to the court of appeals; and to the return to the court of appeals was annexed a stipulation, which did not appear in the record upon the hearing before the general term, and was not presented to the general term, which facts appear upon the face of said return to the court of appeals. The court of appeals held that the judgment of the general term upon the record and facts before it was correct; but, because of the existence of this stipulation, which did not appear in the record before the general term, and was not presented to such court, its judgment was reversed. 143 N. Y. 59, 37 N. E. 634.

It has long been the settled rule in our state that an appellate tribunal may permit a record to be produced on argument in the appellate court. But this was allowed only for the purpose of sustaining a judgment, and was never permitted for the purpose of reversing one. Stilwell v. Carpenter, 62 N. Y. 639; Porter v. Waring, 69 N. Y. 255; Day v. Town of New Lots, 107 N. Y. 157, 13 N. E. 915; Dunham v. Townshend, 118 N. Y. 286, 23 N. E. 367. This authority also seems to have been limited to the receipt of records, such as records of judgments, bankrupt discharges, and certificates of nat uralization; and evidence of this character was received by the appellate court for the reason that, being in its nature uncontrovertible, it would be icjle to send the case back for a new trial for the sole purpose of admitting it. There does not seem to have been any authority whatever for the admission of evidence of any other character, and in the case of Porter v. Waring, supra, such a limitation seems to have been specially noticed. In the case at bar, for the purpose of reversing the judgment of the general term, the appellate court has received a stipulation which was not in the record before the general term, which was not recited in the order of discontinuance which was the foundation of the judgment of the general term, of which, therefore, the general term could have no knowledge, and which it could not consider. This seems to have established a different rule from tboJ" which has heretofore obtained in this state in respect to the receipt of evidence by an appellate tribunal. Eot only is evidence received of a character essentially different from that to which this privilege has hitherto been confined, but it is also admitted, not for the purpose of supporting a judgment, as has heretofore been the rule, but for the reversal of such judgment. In view of the conclusion arrived at by the court of appeals upon the previous appeal, we think that the orders appealed from must be affirmed, with costs. 
      
       27 N. Y. Supp. 764.
     