#### George Cohen, Respondent, *v.*Bernard Weill, Sued herein as Benjamin, the name Benjamin being fictitious, etc., Appellant.

(Supreme Court, Appellate Term,

July, 1900.)

1. Municipal Court of the city of New York — Justice cannot require copy of stenographer’s minutes and tax expense.

A justice of the Municipal Court of the city of New York has no power to direct a plaintiff to furnish him with a copy of the stenographer's minutes of the trial and include the expense, as a part of the costs, in a judgment subsequently rendered in favor of the plaintiff.

2. Same — Jurisdiction lost by failure to decide in eight days — Conflict as to time of decision.

Although the return of such a justice states that he rendered judgment within eight days from the time when the case was finally submitted to him, where the record clearly shows that he could not have done so, it must be considered that the return is incorrect and that he had lost jurisdiction by the delay.

Appeal from a judgment in favor of the plaintiff rendered in the Municipal Court of the city of New York, seventh district, borough of Manhattan.

John P. Donnelly, for appellant.

Hyman Levy, for respondent.

Scott, J.

After this action had been tried and submitted to the justice, he made an order directing the plaintiff to furnish to the ’ court 'the stenographer’s minutes taken on the trial of the action. He afterwards allowed to the plaintiff, and included in the judgment as part of the costs, the sum of thirty-five dollars and eighty cents, being the amount said to have been paid by the plaintiff for the copy of the minutes. There is no provision of law justifying this practice. If this was the only defect in the judgment, full justice could be done by modifying it. There appear to be others, however. It appears from the record before us that the cause was tried and submitted to the justice on January 30, 1900. The indorsement of judgment made by the justice *199upon the original summons, and signed by him, bears date February 13, 1900, more than eight days after the submission of the cause. It is evident that the judgment could not have been rendered before February thirteenth, because it includes the sum paid, as already stated for the stenographer’s minutes, and these were not allowed, as appears by the indorsement of the justice upon the bill of costs, until February thirteenth. Furthermore the undertaking on appeal, which was approved by the justice, recites that the judgment was rendered on February thirteenth. It is true that, in the statement attached to the return, the justice states that he rendered judgment on February sixth. This, however, is clearly a mistake or an inadvertence. The return to this court consists, not only of the statement of the justice as to the course of this litigation, but also of the original records returned by him. We are, of course, bound to accept the return as true, but when, as in the present instance, the return taken together contains two statements apparently contradictory, one of which is clearly erroneous and apparently the result of an oversight, we may disregard it, and determine the appeal upon the fact as it is shown to be by the convincing evidence of the original record. It.follows that the justice, not having rendered judgment within eight days after the submission of the case to him, lost jurisdiction to render judgment at all.

The judgment appealed from must be reversed, with costs.

Truax, P. J., and Dugro, J., concur.

Judgment reversed, with costs.