Van Valkenburgh v. Bourne

Taylor, J.

Appeal in a personal injury automobile negligence action from an order of the Supreme Court at Special Term which settled the transcript of the proceedings at the trial of the action by disallowing two amendments thereto proposed by plaintiff (CPLR 5525, subd. [e]). The first proposed amendment seeks to insert in the transcript the alleged gist of a conference of the attorneys for the parties which took place at the bench of the Trial Judge at the instance of counsel for plaintiff and of which no stenographic record was requested or made. The second proposed amendment seeks to include an alleged statement made by the attorney for defendant Bourne during the course of an unrecorded summation to the effect that plaintiff had “ flunked his driver’s test.” Special Term rejected the first amendment on the ground that the Bench conference was a private and informal one not intended to be part of the record and that “ it is impossible to fairly and accurately set forth at this time the statements made during the course of said conference,” Essentially its basis for disallowing the second proposed amendment was that if the above-quoted comment was made “ no opportunity is now afforded to disclose for the record the context in which same was made.” We are in accord with the Trial Judge that the first proposed amendment should not be allowed for the reasons assigned. The affidavit of counsel for defendant Bourne submitted in opposition to the motion concedes, however, that he used in summation language similar in import to the quoted words and the context in which he employed them. Under these circumstances appellant is entitled to have the transcript show his comment. (Morlock v. Hamilton, 226 App. Div. 222, affd. 252 N. Y. 552.) Order modified, on the law and the facts and in the interests of justice, so as to allow the second proposed amendment to the transcript in a form appropriate to the concession and, as so modified, affirmed, without costs, and motion remitted to Special Term for further proceedings in accordance with this decision. Settle order. Gibson, P. J., and Aulisi, J., concur. Herlihy and Staley, Jr., JJ., dissent and vote to affirm on the opinion of Mr. Justice Cooke at Special Term.