I dissent. I think that the majority of the court in coming to the conclusion at which they have arrived upon this application, have been largely influenced by the facts brought to their attention by the counsel for the respondent in the appendix to his brief which relates to circumstances which were not before the court below at the time of the hearing, which formed no part of the record and which have occurred since the granting of the motion. I am led to this conclusion by the consideration that, notwithstanding this fact, which would heretofore have been regarded as reprehensible practice upon the part of the counsel for the respondent, not a single word of criticism is to be found in the prevailing opinion, and the counsel is permitted to reap the fruits of his irregular and improper practice and establish a precedent: which in the future will be rather troublesome for the court. The court allows to be placed upon the record as part of the papers upon the appeal in this case a statement of facts and circumstances which, as I have said, were not before the court and which have occurred since the hearing of the motion by the court below.
*71It seems to me that this is countenancing a practice which ought to have received the severe censure of the court instead of receiving the stamp of their approval.
Order affirmed, with ten dollars costs and disbursements.