The opinion of the court was delivered by
Fort, J.This cáse is an appeal from the Elizabeth District Court.
The case sent up is made up of a transcript of the stenographic notes of the evidence taken at the trial and of the charge of the judge.
The following appears in the record before us:
“It is agreed between counsel representing the parties to the above-named suit that the following transcript of the stenographer’s notes, taken on the trial of the above-named *414suit, before lion. Edward S. Atwater, judge of the Elizabeth District Court, shall constitute and be the agreed state of case, according to the statute.”
This is signed by the attorney of each party.
Under the act of 1902 governing appeals from District Courts (Pamph. L., p. 565), the stenographic notes of the trial may not be sent-up as the state of the case. Boland v. Kaveny, 42 Vroom 488.
The judge must certify the facts found by him or the attorneys must stipulate as to them. It is not all the evidence that is to be sent up, but only the facts found from it. Bierman v. Reinhorn, 42 Vroom 422; Van Vechten v. McGuire, 41 Id. 657.
But, it may be suggested, that by the act of April 12th, 1905, the stenographic notes may now be certified as the state of the case. Pamph. L. 1905, p. 259.
That act does so provide, but the attorneys of the parties cannot make such certificate. Under this act, where a stenographer has been designated by the District Court to transcribe any case pending therein, it is provided that “if an appeal shall be taken from or a writ of certiorari allowed upon the judgment in said cause the transcript of said proceedings and said testimony, made by said stenographer, shall be certified by said judge as the state of the case to be used on the hearing of said appeal or certiorari,” &e.
This statute gives no authority for any state of the case thus composed, except it be certified by the judge who tried the cause.
It should also be noted that no judgment is found in the state of the case, as required by Boland v. Kaveny, supra.
The appellant may have thirty clays within which to perfect his appeal by procuring the certificate of the judge who tried the cause, otherwise the appeal may be dismissed.