Crook v. Hamlin , 71 Hun 136 ( 1893 )

DYKMAN, J.

This is an appeal from an order denying a motion to vacate the judgment in this action entered upon the decision of a judge after a trial before him at special term without a jury. The motion was made by the defendant against whom the judgment was entered, and was based upon the allegation that the trial judge did not hear all the testimony, and did not read it all, because it was-not written out by the stenographer by whom it was taken. The material facts seem to be these: The trial of the action commenced on the 19th day of December, 1892, and testimony was introduced before the judge until recess. The judge did not appear after the recess, and the parties proceeded to take testimony before the stenographer by agreement during the afternoon, and again the next day, in the absence of the judge. The trial was then adjourned by consent until the 30th day of December, 1892, and on that day the judge was present. Some further testimony was then taken, and the trial was closed. At that time the testimony taken in the absence of the judge was undisputed, to say the least, if it was not agreed upon. The case was argued before the judge, and it appears that each counsel stated the facts upon which he relied, but there was no dispute about the facts, and the judge found it unnecessary to cause the testimony to be written out, as there was no necessity for him to refer thereto. This motion was not based upon errors committed during the trial, because such questions will be examined upon the appeal from the judgment. The claim seems to be that there has been a mistrial, or rather no trial according to legal requirements. We cannot coincide with that view. The trial judge gathered the facts from the concession of the counsel upon the argument, and found the facts undisputed, and decided the questions of law upon that theory. If there has been error, it will be detected and decided upon the appeal, but the motion.to vacate the judgment was properly denied, and the order should be affirmed) with $10 costs and disbursements.