Where the facts are undisputed, the court on appeal may direct the resettlement of a case or order to conform to the facts. New York, Rubber Co. v. Rothery, 112 N. Y. 592; Second Appeal, 119 id. 633; Gleason v. Smith, 34 Hun, 547; Healey v. Terry, 26 N. Y. St. Repr. 929.
But here the facts are disputed. The certificate of the judge as to what occurred before him must be accepted as conclusive. Green v. Shute, 26 N. Y. St. Repr. 114; Healey v. Terry, 26 id. 929. This rule applies to the present contention (Smith v. Grant, 11 Civ. Proc. Rep. 354), and requires that the order appealed from must be affirmed with costs.
Van Wyck and McCarthy, JJ, concur.
Order affirmed.