People v. Buccufurri

Appellate Division of the Supreme Court of New York

People v. Buccufurri

154 A.D. 827, 29 N.Y. Crim. 137, 139 N.Y.S. 305, 1913 N.Y. App. Div. LEXIS 9038

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 17, 1913

StatusPublished

Cited by14 cases

This text of 154 A.D. 827 (People v. Buccufurri) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Buccufurri, 154 A.D. 827, 29 N.Y. Crim. 137, 139 N.Y.S. 305, 1913 N.Y. App. Div. LEXIS 9038 (N.Y. Ct. App. 1913).

Pincite

Opinion

Rich, J.:

This appeal is from an order denying appellant’s motion to resettle a case on appeal and to allow a proposed amendment so that it will contain an exception to the refusal of the trial court to charge as requested by appellant. The exception was in the proposed case on appeal, but was stricken out upon the settlement of the case upon the ground as stated in the memorandum of the learned justice at Special Term : “ Case and amendments settled — I must allow the 9th amendment. Stenographer’s Minutes show no exception taken or intimátion that counsel was not satisfied with the response to the request.”

The affidavit of the attorney who "represented the appellant at the trial, as well as that of his assistant, state that the • exception was taken. The assistant district attorney averred that to the best of his recollection no exception was taken.

A party to an appeal is entitled to have his case show the facts as they really happened on the trial, and should not be prejudiced by an error or an omission of the stenographer. The duty is upon the trial judge to pass upon the accuracy of the record. The minutes of the stenographer are entitled to great weight, but they are not conclusive. . (Otto v. Young, [829]*82943 Misc. Rep. 630; McCready v. Lindenborn, 24 id. 606.) The responsibility of settling a case is upon the trial judge. His notes and his recollection of what occurred, and any other means which may satisfy him, must prevail, and while he may be aided by the stenographer’s minutes, he ought not to rely upon them alone.

It is beyond our power to dictate as to how a case should be settled, and we do not presume to do so, but we cannot assume that the ruling was based upon the personal recollection of the trial justice, refreshed or aided by other means, in view of the record before us.

The order of. the Special Term must, therefore, be reversed and the case remitted to the trial justice for resettlement.

Jenks, P. J., Thomas, Caer and Woodward, JJ., •concurred.

Order of Special Term reversed and case remitted to the trial justice for resettlement.

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Rich, J.:

This appeal is from an order denying appellant’s motion to resettle a case on appeal and to allow a proposed amendment so that it will contain an exception to the refusal of the trial court to charge as requested by appellant. The exception was in the proposed case on appeal, but was stricken out upon the settlement of the case upon the ground as stated in the memorandum of the learned justice at Special Term : “ Case and amendments settled — I must allow the 9th amendment. Stenographer’s Minutes show no exception taken or intimátion that counsel was not satisfied with the response to the request.”

The affidavit of the attorney who "represented the appellant at the trial, as well as that of his assistant, state that the • exception was taken. The assistant district attorney averred that to the best of his recollection no exception was taken.

A party to an appeal is entitled to have his case show the facts as they really happened on the trial, and should not be prejudiced by an error or an omission of the stenographer. The duty is upon the trial judge to pass upon the accuracy of the record. The minutes of the stenographer are entitled to great weight, but they are not conclusive. . (Otto v. Young, [829]*82943 Misc. Rep. 630; McCready v. Lindenborn, 24 id. 606.) The responsibility of settling a case is upon the trial judge. His notes and his recollection of what occurred, and any other means which may satisfy him, must prevail, and while he may be aided by the stenographer’s minutes, he ought not to rely upon them alone.

It is beyond our power to dictate as to how a case should be settled, and we do not presume to do so, but we cannot assume that the ruling was based upon the personal recollection of the trial justice, refreshed or aided by other means, in view of the record before us.

The order of. the Special Term must, therefore, be reversed and the case remitted to the trial justice for resettlement.

Jenks, P. J., Thomas, Caer and Woodward, JJ., •concurred.

Order of Special Term reversed and case remitted to the trial justice for resettlement.

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Bluebook (online)

154 A.D. 827, 29 N.Y. Crim. 137, 139 N.Y.S. 305, 1913 N.Y. App. Div. LEXIS 9038, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-buccufurri-nyappdiv-1913.

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