Esposito v. Herrschaft

¶1Motion by appellants to reverse a judgment of the County Court, Suffolk County, entered January 23, 1961, after a non jury trial before a Referee to whom the action was referred to hear and determine, in favor of appellants on the second cause of action and dismissing the first cause of action; and for a new trial. Appellants make the motion on the ground that a proper record is unavailable and, hence, they are prevented from prosecuting their appeal. Motion granted; judgment reversed on the law, without costs, and a new trial granted. The findings of fact made by the Referee have not been considered. It appears that no stenographer was present at the trial and that the Referee’s penciled notes constitute the only record of the testimony adduced. The Referee has died, and a search of his files has failed to produce any of his notes or other record of the testimony of the trial. Under the circumstances a new trial must be had. Nolan, P. J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur.