and 88 New York State Reporter. known to be accurate by those by whom they were made. 1 Whart. Ev. § 133. The omitted exhibit consists of seven sheets of plans. The plans were made by Emile W. Grauert for Henry Edwards Ficken long before the trial, and were positively identified by both of these witnesses as the plans used at the trial, and in this respect they were corroborated by the counsel and attorney of the plaintiff. No substantial reason appears for disregarding this evidence. The seven sheets composing the exhibit have, for convenience of reference, been marked at the present hearing A to G. A careful reading of the evidence given by the defendant and his witnesses shows that the absence of the stenographer's mark created a suspicion, which blossomed into a belief, and finally a charge, that the plans offered as Defendant's Exhibit 6 had been tampered with. The defendant and his witnesses declined to swear that the plans exhibited (with the exception of E and F) were not the identical plans used at the trial, and marked "Exhibit 6." The reason for even doubting E and F was that the sheets seemed newer and cleaner than the others,-a circumstance explained by the architect, that the other sheets were used daily during the progress of the work, while E and F were not so used. The stenographer may have failed to put his mark on Exhibit 6, or it may have been put upon the wrapper which covered it, and is now missing. Be that as it may, the mere absence of such mark does not authorize the court to arbitrarily disregard that which was undoubtedly used as evidence at the trial. The charge of fraudulent substitution of plans has utterly failed, and the seven sheets, A to G, must be printed in the case. Such charges should never be made, unless supported by evidence to sustain them. Reputation of counsel should not be assailed without just cause. Even where a document is offered in evidence and rejected, it should be marked for identification, and incorporated in the case on appeal, so that the appellate court may determine whether it was competent. Mengis v. Railway Co., 81 Hun, 480, 30 N. Y. Supp. 999. Exhibits used upon a trial form an essential part of the appeal book, and the failure to print them may in some cases raise a presumption against the appellant which may result in an affirmance of the judgment. Sloane v. Chemical Co. (City Ct. Brook.) 18 N. Y. Supp. 442. The defendant urges that, because the respondent noticed the case for argument, she waived all right to have the record made truthful. This is not so, for the trial court retains the power of making proper corrections of the record until the appeal is disposed of by the appellate court. No act or neglect of parties can impose upon the court an untruthful or incomplete account of a trial sought to be reviewed when its accuracy is challenged by an application to make the record correct. In Rubber Co. v. Rothery, 112 N. Y. 592, 20 N. E. 546, an order denying a motion to resettle a case was reversed, and the motion for resettlement granted. The court said: "It seems to us clear that in such a case a party is entitled as of right to have the case show the actual facts as they really occurred on the trial, so that an appellate court can decide the case upon a record which is absolutely correct." Litigants are not to be prejudiced by errors or omissions of the stenographer, whose minutes, although entitled to great weight in case of conflict respecting what took place, are not conclusive as to what occurred at the trial. The responsibility of settling a case and of determining what occurred at the trial is upon the court, aided by the stenographer's minutes, by any notes taken by the judge himself, or his memory of what occurred, or by any other means which may satisfy his conscience, and enable him to make a truthful return to the appellate court. Foster v. Bank, 21 Misc. Rep. 8, 46 N. Y. Supp. 839. It follows that the case certified to and filed with the clerk of the appellate division must be recalled, according to prescribed practice (Rew v. Barker, 2 Cow. 408; Luyster v. Sniffin, 3 How. Prac. 250; Witbeck v. Waine, 8 How. Prac. 433), that the proper corrections may be made therein to conform to this decision. (33 App. Div. 605.) KNOWLES v. LICHTENSTEIN. (Supreme Court, Appellate Division, Second Department. NOTICE OF TRIAL-WAIVER OF OBJECTIONS, October 25, 1898.) By answering under an extension granted on condition that the issue be of date of the original time for answering, and that plaintiff be permitted to serve short notice of trial for the next succeeding term, and afterwards amending as of course, and retaining in the meanwhile a notice of trial served before answering, defendant waived any objection that the notice of trial was inapplicable to issues made by pleadings served after the notice. Action by Edwin Knowles against Paul Lichtenstein. There was a judgment for plaintiff by default, and from an order setting it and supplementary proceedings thereunder aside, on terms, defendant appeals. Affirmed. Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ. David Neumark, for appellant. GOODRICH, P. J. The action was brought upon a written guaranty, executed by the defendant, that one Alexandra Viarda, an actress, would perform her written agreement to play an engagement at the plaintiff's Fifth Avenue Theater, in New York. The complaint alleged a breach of the contract, and demanded judgment for $10,648.24, with interest. Before the time for answering expired, and on January 24, 1898, the defendant obtained an order extending his time to answer. The order contained a clause that the issue was to be of January 24th, the date when the time to answer the complaint expired, and that the defendant was to accept short notice of trial for the February term, then less than 14 days distant. Notice of trial for the February term was served by the plaintiff on the next day, and the cause placed on the February calendar. The answer was not served till February 3d. On February 19th, notice of motion was 54 N.Y.S.-4 and 88 New York State Reporter. given to place the issue, as a short cause, on the special calendar for the trial of short causes. Before the motion was argued, and on February 23d, the defendant served an amended answer, setting up a counterclaim, to which the plaintiff served a reply on February 28th. The defendant's attorney did not appear to oppose the motion, and it was granted by default on March 5th, and the cause ordered on the calendar of March 11th for trial. On March 8th the defendant obtained an order to show cause, returnable on March 11th, why the order should not be vacated. When the case was called for trial on March 11th the defendant appeared at the call of the calendar, and stated the pendency of the motion on that morning, and asked for an adjournment of the trial, which the court refused. The motion to vacate was immediately argued at special term and denied. The cause, however, was not reached for trial till March 23d, when the motion to strike it from the calendar was renewed and denied, an inquest taken, and a judgment entered thereon for $11,435.73. No exception was taken to the denial of the motion for an adjournment. Other motions were made, but it is not important to state any of the proceedings, except those on which the present appeal is founded. June 25th the defendant obtained an order to show cause why the inquest, judgment, and supplementary proceedings which had been issued thereon should not be vacated and set aside. Voluminous affidavits were used on the argument, and an order was entered granting the motion upon condition that the defendant should give an undertaking in the sum of $15,000 for the payment of any judgment which the plaintiff might obtain, and in case of a failure of the defendant to give such undertaking the motion was denied. From this order the defendant appeals. His contention is that the inquest was irregular, on the ground that, as the defendant had a legal right to amend his answer within 20 days after its service, the plaintiff noticed his cause "at the peril of having his notice go for nothing, if his adversary amends his pleading, and thus destroys the issue formed"; that, as an amended answer and a reply thereto were served, there was no notice of trial of the real issue; that an issue cannot be tried without notice; that consequently there was no valid inquest or judgment; and that the court had no power to impose, as a condition of vacating an invalid judgment, the giving of the undertaking. The record shows that there have been numerous supplementary proceedings against the defendant, none of which appear to have resulted in benefit to the judgment creditor; and in the plaintiff's supplementary proceedings, which were commenced on May 20th and closed on June 9th, the insolvency of the defendant was apparent. There is no question that the court has inherent power over its own judgments, irrespective of and beyond sections 724 and 1283 of the Code of Civil Procedure, which provide for relieving a person from judgments. But it may not be said that if the judgment was so irregularly obtained as to be without judicial authority, and therefore void, the court had power to impose as a condition of vacating it the giving of an undertaking to pay any judgment subsequently obtained in the action. Assuming that the Code requires the service of a notice of trial after the final framing of the issues to be tried, as, for instance, in the present case, after the service of the reply to the amended answer, we are brought to the question whether the defendant has done anything by which the original notice of trial takes effect upon the issue framed by the amended answer and reply. We hold that as the order extending the time to answer contained a provision that the issue should be of the date of January 24th, and that the defendant should accept notice of trial for the February term, without objection, and as such notice was served and received without being returned as premature or irregular, he waived any irregularity, and consented to its applicability either to the original issue, or to the issue framed by the amended answer and reply thereto. He accepted the benefit of the order, and, having done so, cannot be permitted to repudiate any of its burdens. The cause was regularly on the trial calendar, and regularly noticed for the February term, and the inquest was regularly taken. This appeal is taken on the ground that the application to the special term was a matter of right, and not of favor. This view, as we have seen, is erroneous, and disposes of the present appeal. The order is affirmed, with $10 costs and disbursements. cur. (24 Misc. Rep. 560.) All con DAVIDSON V. MAYOR, ETC., OF CITY OF NEW YORK. (Supreme Court, Trial Term, New York County. September, 1898.) MUNICIPAL CORPORATIONS-PERSONAL INJURY-CITY'S LIABILITY. Since Consolidation Act, § 704, charges the commissioner of streetcleaning of New York with the duty of removing from the city, or otherwise disposing of, ashes and garbage, as often as the public health may require, the city is not liable for a personal injury caused by the driver of a vehicle in the street-cleaning department while employed in removing garbage from houses, as under the act it was not a duty performed for the benefit of the city as a corporation, but a general governmental function performed for the general welfare of all the people. Action for personal injuries by Edwin Davidson, by Albert Davidson, his guardian ad litem, against the mayor, etc., of the city of New York. There was a verdict for the plaintiff, and the defendant moves to set aside the verdict, and for a new trial. Granted. A. Welles Stump (George C. Harrison, of counsel), for plaintiff. John Whalen, Corp. Counsel (Harold S. Rankine, of counsel), for defendant. CHESTER, J. An examination of this case leads me to the conclusion that I should follow the decision in the case of Bishop v. City of New York, 21 Misc. Rep. 598, 48 N. Y. Supp. 141. In that case the injuries were caused by an empty ash cart, belonging to the street-cleaning department, while being drawn in the street. It did not appear what special duty the driver was engaged in at the time. Here it appears that at the time of the accident the driver was not engaged in cleaning streets, but was employed in removing waste paper and other garbage from houses on Madison avenue. In the and 88 New York State Reporter. absence of a statute, there would be no obligation resting upon the city to remove refuse from houses; but Consolidation Act, § 704, charges the commissioner of street-cleaning with the duty of removing from the city, or otherwise disposing of, ashes and garbage, as often as the public health may require. This, under the principle of the case referred to, is not a duty performed for the benefit and advantage of the city as a corporation, but is a general governmental function, performed in the interest of the public health, and for the general welfare of all the people. That being so, the defendant is not liable for the injuries sued for. Maxmilian v. Mayor, etc., 62 N. Y. 162; Condict v. Jersey City, 46 N. J. Law, 157. The motion to set aside the verdict and for a new trial is granted. Motion granted. (24 Misc. Rep. 549.) PEOPLE v. WILLIS. (Supreme Court, Special Term, Kings County. September, 1898.) 1. BRIBERY-INDICTMENT-SUFFICIENCY-DUPLICITY. Under Pen. Code, § 72 (providing that any officer who "asks," receives, or "agrees" to receive a bribe, "or any promise or agreement" therefor, on an understanding that his official action will be thereby influenced, shall be punishable for bribery), an indictment alleging that accused was commissioner of city works, and had on a certain day unlawfully and feloniously agreed to employ a person to do certain public work if such person would cease to dispute a claim made by accused's firm, and would give notes therefor, and that the contract was so arranged as to make the first payments for the work precede the maturity of the notes, and that accused did so employ a person agreed on, who was paid out of the city fund, and the said notes were then paid, is a sufficient statement of the acts constituting the offense. 2. SAME-DEFENSES. It is no defense to a prosecution for bribery under Pen. Code, § 72 (providing that any officer who asks, receives, or agrees to receive a bribe, or any promise or agreement therefor, on the understanding that his official action will be thereby influenced, shall be punishable for bribery), that notes which accused received were void because of the illegality of the transaction. 3. SAME-INDICTMENT-DUPLICITY. An indictment for bribery alleging that accused corruptly agreed to employ the bribe-giver to do certain city work, and did employ a person in the latter's interest to do work, without advertisement for proposals, and without competition, is not double, as also charging a willful neglect of a public duty, since there is no allegation of a duty which was neglected, nor that an advertisement for proposals and competition was requisite. Theodore B. Willis was indicted for bribery, and demurred. lowed. Disal Josiah T. Marean, Dist. Atty., for the People. Nicoll, Anable & Lindsay (Benjamin F. Tracy, Albert E. Lamb, De Lancey Nicoll, and John D. Lindsay, of counsel), for defendant. HIRSCHBERG, J. The defendant demurs to an indictment for bribery on the ground (1) that it does not contain a plain and concise statement of the act constituting the crime, and in the form prescribed by the Code of Criminal Procedure; (2) that more than one crime is |