Healey v. Terry

We are satisfied that the words stricken put were part of plaintiffs’ Exhibit 3, and cannot be detached therefrom. Where the facts are disputed, the certification of the trial judge as to what occurred is conclusive, (Green v. Shute, ante, 69;) but where the facts are undisputed, or are indisputable, the trial judge cannot arbitrarily strike out evidence regarded by the appellant as material to his appeal, (Rubber Co. v. Rothery, 112 N. Y. 592, 20 N. E. Rep. 546.) The words stricken out formed part of plaintiffs’ Exhibit Ho. 3, and the appellants had the right to have them printed as part and parcel thereof. It follows that the order striking them from the case must be reversed, with costs.