#### John Gibson, Plaintiff, v. The Metropolitan Street R. Co., Defendant.

(Supreme Court, Kings Trial Term,

May, 1900.)

1. Case on appeal — Amendment, material to respondent, permitted on an appeal from an order denying a motion for a new trial on the minutes in an action for personal injuries.

An appeal from an order, denying a motion made by the defendant for a new trial on the minutes in an action to recover damages for personal injuries caused by alleged negligence, raises the questions whether the verdict was excessive or contrary to the evidence, and therefore the plaintiff should be permitted to amend the proposed case by inserting therein omitted evidence showing the extent of his injuries and the time he was disabled by them, as these are elements material to support the verdict.

2. Same — Certificate that case contains all the evidence, when proper.

A certificate that a case on appeal contains all the evidence is not necessary and serves no purpose where there was a jury trial, and is proper only where the trial was had before a judge or referee.

Settlement of case and exceptions on appeal. The judgment is for the plaintiff for personal injuries caused by the negligence of the defendant, entered upon a verdict. The appeal is from the judgment, and also from an order denying a motion on all the grounds for a new trial on the judge’s minutes.

B. Frank Wood for plaintiff.

Henry A. Robinson for defendant.

Gaynob, J.:

In the proposed case the evidence of the two physicians showing the extent of the injury to the plaintiff and the time he was disabled from it is omitted, and the plaintiff proposes an amendment that it be inserted. The appeal from the order denying the motion on the minutes for a new trial raises the questions whether the verdict is excessive, or contrary to the evidence, and it is therefore for the plaintiff to see that all the evidence on those *392heads is in the case. He would not be protected by my striking from the case the statement at the end of it that it contains all of the evidence, for the questions raised by an appeal from such an order are up without the case containing such a certificate. Such a certificate has no place in a case on appeal where there was a jury trial. It .only has place and effect where the trial was before a judge or a-referee, as it there serves in the proposed case as the only notice-the respondent has that a review on the facts is to be sought by the-appellant, as was decided in *Porter*v. *Smith*(107 N. Y. 531). That decision has no reference or application to appeals in cases-tried before a jury. In such cases the notice of appeal from the order denying the motion on the minutes for a new trial serves as-such notice that the case is to be reviewed on the facts. That is what the appeal from such an order means. The few decisions that such a certificate was necessary in order to review the facts on appeal from such an order were deemed inadvertent all along by timbar, and must .now be deemed to be overruled *(Rosenstein*v. Fox, 150 N. Y. 354; *Hewett*v. *Town of Thurman,*41 App. Div. 6). Decisions to the same effect made since the decision in the *Rosenstein*case, like that in *Hunt*v. *Webber*(22 App. Div. 631), must certainly have been inadvertent. The decision as reported in *Martin*v. *Baust*(23 App. Div. 234) is a sample of blind reporting. The reporter does not reveal whether the appeal was from a trial by a jury, or by a judge or referee, which makes all the difference in the world. The notice of appeal from the order denying the motion for a new trial is notice to the respondent here that the appellant will claim on the appeal that the verdict is excessive and contrary to the evidence, and the respondent must protect himself by having the case contain all the evidence on those heads.

The amendment -is allowed, unless the appellant puts in the case a statement that it does not contain all of the evidence on the nature, extent and effect of the injury.