majority"> Golding, J.

The justice’s return is insufficient because it does not contain all the proceedings, including the evidence and the judgment. (Justice Court Act, § 438; Cowing v. Carpenter, 128 Misc. 886; Dombek v. Carlson, 162 N. Y. Supp. 1106.)

The return is grossly imperfect. None of the evidence is included. The justice gives his conclusions from the evidence submitted to him during the trial. From the argument of counsel the court is led to believe that the evidence submitted was not recorded. An order directing an amended return under these circumstances to include the evidence would be fruitless.

It is the respondent’s duty to see that the justice complies with the requirements of the statute and that the return contains all the evidence given on the trial. (Cromwell v. Hall, 88 Hun, 617; Halpin v. Phœnix Ins. Co., 118 N. Y. 165.)

There is nothing before the court to determine the merits of this appeal. The litigants should not be penalized because of the failure of the justice to record the evidence taken. Justice requires that this case be retried.

*83The judgment is reversed and a new trial is ordered before F. P. Betts, justice of the peace of the town of Middleburg, Schoharie county, N. Y., on the 10th day of July, 1935, at ten o’clock in the forenoon. No costs.

Order accordingly.

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