Volhard v. Volhard

The order appealed from resettles the case on appeal by inserting - therein an exhibit which-it is alleged was before the court upon the *549trial, and inserting also a statement of a mortgage among the “ Digest of deeds, mortgages and assignments,” and amending the title of the case wherever the same may appear in the printed papers, so that the title should conform to that in the summons and complaint. > It seems that this action was in equity; was'tried at the Special Term, and judgment entered on the 17th day of January, 1905. The case was made and settled and a stipulation signed waiving certification by.the clerk. It was alleged by the plaintiff that there was omitted from the printed case two exhibits which were overlooked by his attorney, one being an abstract from the East Brooklyn Savings Bank, and another the recital of a mortgage which he asked to have inserted in the case, and that the title of the case conform to the title in the pleadings.

This was a question to be determined by the trial judge, and I do not think that we. should interfere with him in his determination of what was before him. The form of the title of the case is of no possible consequence. I think, however, that the plaintiff should have been required to pay the costs of reprinting, the record made necessary by the amendment allowed.

It follows that the order appealed from should be modified accordingly, and as modified affirmed, without costs.

McLaughlin, Clarke, Houghton and Scott, JJ., concurred..

Order modified as directed in opinion, and as modified affirmed, . without costs. Settle order on notice.