Opinion
Argued June 15, 1880
Decided September 21, 1880
Amasa J. Parker for appellant.
John Lansing for respondents.
The case upon appeal in the " Matter of Beckwith, a lunatic," came before the General Term in October, 1874, and after argument was submitted to that court. The lunatic died on the 15th day of January, 1875; on the 22d day of that month the appeal was decided and an order thereon entered. It was right to correct this entry so that the order or decision should bear date as of a day anterior to the death of the lunatic, and to that end the defendant herein gave notice to the plaintiff of a motion to be made in October, 1879, for an amendment of the General Term order of 22d January, 1875, before referred to, so that it should bear date "as of a day in the said General Term of January, 1875, prior to the death of said lunatic." This motion was opposed by the plaintiff Carter, but was granted on the 25th of October, 1879, in these words: "Motion to amend order as to its date granted on payment of $10 costs to George C. Carter." Notice of this order was served upon, and the costs paid to, and received by Carter. No appeal was taken from the order, and it must be deemed to have been acquiesced in. It will be noticed that no precise day is mentioned as that on which the order should be deemed to have been entered, and apparently to remedy this defect and for other purposes, a further application was made to the court on notice to the plaintiff, which resulted in the order appealed from. So far as it directs the entry of the order of 22d January to be amended so that it shall stand as of January 5th, it differs from the one before referred to, made October 25, 1879, only in this: it supplies by a specific date an evident omission in that order. To that extent it is correct, and must stand. It is urged, however, that the case on appeal from the decision at the circuit should go before the General Term upon the return made to it by the court below, and this, I think, is so.
The case upon appeal should be a transcript of the proceedings upon the trial, or so much of them as will present fairly the decision sought to be reviewed. I am aware of no authority or practice which will permit an appellate court to direct such an alteration of the record as will cause it to state untruly the events of the trial. The cases cited by the respondent's counsel ( Jarvis v. Sewall, 40 Barb. 449, and others) do not go to that extent. They only show that record evidence imperfectly proved on the trial may be exhibited upon the argument before the appellate tribunal, and this for the reason that it would be idle to send a cause back for a new trial upon an exception no longer tenable, and for the same reason, a record not put in evidence upon the trial may in some cases be presented for the first time to an appellate court. If this rule applies here the defendant can avail himself of it, and with such effect as the court receiving the record shall think it entitled to.
Therefore so much of the order appealed from as directs that the amended order be inserted in the case on which the appeal in this action is now pending before the General Term should be reversed, and the rest of the order affirmed without costs to either party in this court.
All concur.
Ordered accordingly.