
    MARJULIES v. GOLDSTEIN et al.
    (Supreme Court, Appellate Term.
    November 6, 1903.)
    1. Case on Appeal—Resettlement—Review.
    Where the papers on which the court acted in denying a motion for resettlement of the case on appeal present no dispute as to the condition of the record, showing, as claimed, the matters desired to be inserted, and it does not appear the denial was based on the justice’s recollection of the facts at the trial, the order will be reversed, the matters appearing material.
    Appeal from City Court of New York, Special Term.
    Action by Moses Marjulies against Max Goldstein and others. From an order denying a motion for resettlement of the case on appeal, plaintiff appeals. Reversed.
    Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.
    J. Wulkenfeld, for appellant.
    Steuer, Hoffman & Wahle, for respondents.
   PER CURIAM.

The papers upon which the court acted when denying the motion for resettlement, as recited in the order, present no dispute of fact as to the condition of the record, and it thus appears that the admission as to the date of service of the answer was made as claimed at the trial, and that the statements of counsel to the jury deemed to be prejudicial were actually made. In the absence of any suggestion that the denial was.based upon the justice’s recollection of the facts at the trial, the matter may be reviewed upon the papers before him (Zimmer v. R. R. Co., 28 App. Div. 504, 51 N. Y. Supp. 247); and the materiality of the matter stricken out, for the purposes of an appeal, is sufficiently shown to justify the motion for resettlement. The cases referred to by the respondent had to do with a dispute of fact as to the record before the justice, or with a failure to present, on appeal from the order, the papers upon which he acted.

Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs. All concur.  