
    Frederick T. Mason, Appellant, v. Frederick Tietig, Respondent.
    (City Court of New York, General Term,
    February, 1898.)
    Practice — Case on appeal — Resettlement.
    The Special Term of the City Court of the city of New York may-direct a trial justice to resettle a case on appeal, if he deems it proper to do so, but it cannot direct him to resettle it in a manner specified in. the order of resettlement.
    Appeal from an order resettling a case on appeal.
    C. H. & J. A. Young & Terry, for appellant.
    James S. Lehmaier, for respondent.
   Per Curiam.

The order 'appealed from must be modified. It. directs the trial justice to resettle the case on appeal in a particular-manner. In so doing the Special Term justice exceeded his powers.

If it appeared to him that the case on appeal was not properly-settled, it was within his power to order that it he sent hack to the trial justice to resettle the same, if he deemed it proper to do so.

The order appealed from goes further than that, and directs-a resettlement in certain particulars. It must be modified so as-to conform to our view and as so modified, is affirmed, without-costs.

Present: Fitzsimons, Gh. J., and Conlan, J.

Order modified and as modified, affirmed, without costs.  