
    Timothy McMahon, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.
    Third Department,
    December 7, 1906.
    Practice — case on appeal — when corrected after settlement by deceased , justice.
    The rule that the action of the trial justice in settling a case on appealcannot.be .reviewed applies only when it. appears that .he decided the disputed matter upon his rec’ollection or understanding of the proceedings, had bfefore him. When a trial justice, since, deceased, signed a case on his- sickbed as stipulated v'"''by"the:parties, an error which was overlooked may be subsequently 'corrected,
    
      Appeal by the defendant, The Delaware, Lackawanna and' Western Railroad Company, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 1st day of October, 1906, denying the defendant’s motion to amend the stenographer’s minutes and the case and exceptions on appeal herein.
    Reynolds, Stanchfield & Collin [Alexander D. Falck of counsel], for the appellant.
    J. Courtney de T. E. Courtney, for the respondent.
   Kellogg, J.:

The case on appeal was agreed upon by- counsel and presented by them to the justice who presided at the trial, who was then con-' fined at his home in his last sickness. He signed the order settling the case pursuant to such agreement. Shortly after the justice-died. The case had been prepared pursuant to the stenographer’s minutes by a clerk in the office of the defendant’s attorneys. When the'attorney who'tried the case examined it he for the first time discovered the alleged error, and this motion w.as promptly made at Special Term.

The plaintiff, while in the employ of the defendant, in assisting in unloading a carload of lumber, was injured, as he alleged, by reason of'the negligence of one Sawyer, who he claimed was superintending the. work. The court charged the jury, among other things, that an employee has the right to assume that the master has performed his duty in a reasonable manner to make the place at which the employee is working a reasonably safe and suitable place for the performance of the work. The case and stenographer’s minutes show that the defendant’s counsel requested the court to charge that the car was a place ” to work within that rule. The court declined to so charge, but left it for the jury to say whether it was a reasonably safe place. Defendant’s counsel then made the request, “ likewise to charge that it was not a part of the ways, work and machinery under the Employers’ Liability Act of the State of New York,” which the court charged. Defendant’s Counsel, who tried the case, and his assistant both swear that the request" to charge was that the car was not a place ” in which to work ■instead: of that it “ was a place,” arid they produce the original minutes ‘ of counsel from which the requests were made. The stenographer’ swears that he intended to report correctly, but that counsel may have Used the word “ not ” in the request and lie may not' liáye heard or understood the same, and may have made an-error in reporting the request. One of the plaintiff’s' attorneys swears that the request was taken by the stenographer, in the language used by counsel. The counsel who assisted in trying the case for plaintiff makes no affidavit; The case was tried upon'both sides' by able counsel, and it is- apparent that defendant’s counsel did not intend to make the request as. reported by the stenographer. He may have inadvertently left out the word “ not,” although the next1 request- to charge and the ruling of the court support the defendant’s contention -that the request Was incorrectly reported.

The rule that the action of the trial justice settling a casé on appeal cannot be reviewed only applies where it reasonably appears that he decided thé disputed matter upon his recollection or understanding of the proceedings had before him. (Zimmer v. Metropolitan Street R. Co., 28 App. Div. 504; Marjulies v. Goldstein, 84 N. Y. Supp. 475.). Here the trial justice, upon his sick bed, .merely signed the-order settling the case as stipulated' by- counsel. This motion was decided upon the papers by a justice who had no other knowledge of the facts. . '

The- order appealed from should be reversed, with .-ten dollars costs and disbursements, and the motion to amend the case on appeal granted,- without costs.

All concurred, except Cochrane, J„ dissenting,-

Order reversed, with ten dollars costs and disbursements, and motion to amend- the case granted, without costs. - - ■  