This is an appeal by the defendant from an order of Special Term denying the defendant’s motion to remit the case on appeal for resettlement to the justice who presided at the trial of the case, and denying a motion for the resettlement.
The defendant, if not satisfied with the settlement of the case had a right to move, on additional affidavits, for a resettlement. Such a motion requiring to be made upon notice was properly returnable at' Part I, Special Term. As the settlement of a case on appeal is to be made by the ju.stice presiding at the trial, if he was not sitting at Special Term, Part I, when the motion was returnable,' it was the duty of the justice so presiding to refer said motion to said trial justice for decision. The refusal in the case at bar to so remit the motion and to undertake to determine it at Special Term was error.
The order appealed from should be reversed, with ten ■ dollars costs and disbursements, and the original motion directed to be . remitted for decision to the justice who presided at the trial of the action.
Present—O’Brien, P. J., Ingraham, Clarke, Houghton and Scott, JJ.
Order reversed, with ten .dollars costs and disbursements, and motion remitted for decision to the justice who presided at trial of action. ■ x