Bayuk v. Feldman, A--726
| Decision Date | 22 January 1951 |
| Docket Number | No. A--726,A--726 |
| Citation | 11 N.J.Super. 317,78 A.2d 282 |
| Parties | BAYUK et al. v. FELDMAN. |
| Court | New Jersey Superior Court — Appellate Division |
Lillian Clawans, Newark, argued the cause for plaintiffs-appellants.
Joseph N. Braff, Newark, argued the cause for defendant-respondent (Arthur A. Sullivan, Newark, attorney).
Before Judges McGEEHAN, JAYNE and WM. J. BRENNAN, Jr.
The opinion of the court was delivered by
McGEEHAN, S.J.A.D.
In the complaint filed in the Essex County District Court the plaintiff Lillian Bayuk alleged that she was struck by defendant's automobile and she demanded damages for the injuries she sustained; plaintiff Edward Bayuk, her husband, sued for consequential expenses and loss of consortium. After a trial before the district court judge, sitting without a jury, judgment against the plaintiffs and in favor of the defendant was entered, and the plaintiffs appeal.
There was no stenographic record of the evidence or proceedings below. Pursuant to Rule 1:2--23 the plaintiffs prepared and served on the defendant a statement of the evidence; the defendant served objections thereto and proposed amendments thereof; and the plaintiffs' statement, together with the objections and proposed amendments of the defendant, were submitted to the court below for settlement. The appeal is before us on the statement of the evidence as settled and approved by the court below and its findings of fact and conclusions of law.
On March 2, 1948, the plaintiff Lillian Bayuk was injured while crossing Broad Street in Newark after 7 p.m. in drizzly weather. As she started to cross on the crosswalk, the traffic light was in her favor. At the time, the defendant's car, among others, was stopped awaiting change of the traffic light. She had reached a point a few feet from the far curb when defendant's car and she collided. The crucial question was whether the plaintiff ran into the defendant's car while the car was still stationary, or whether the car moved forward and struck her.
While the plaintiffs present all their argument under one point, we gather that they seek (1) new or amended findings of fact by this court under Rules 1:2--20 and 4:2--6, (2) the reversal of the judgment below as against the weight of the evidence, and (3) the entry of judgment in favor of plaintiffs on the issue of liability and remand to the trial court for trial as to damages only.
While the plaintiffs state their argument to be that this court should make new or amended findings of fact, their real argument is that we should disregard a part of the statement of the evidence as settled and approved by the court below, namely, the part setting forth that the defendant testified that the umbrella of the plaintiff Lillian Bayuk struck the car and the handle of the umbrella struck her in the mouth. Plaintiffs point out that no such testimony was included in their statement of the evidence, but admit that it was included in the defendant's proposed amendments. They, have printed in their appendix a copy of some abbreviated notes said to be an exact copy of the judge's notes of the testimony taken at the trial, and...
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...time of decision on appeal. Rogers v. Ziller, Miss., 49 So.2d 736; Woods v. First National Bank, 9 Cir., 16 F.2d 856; Bayuk v. Feldman, 11 N.J.Super. 317, 78 A.2d 282.' 84 Ariz. at 363, 328 P.2d at The State argues that here counsel did not 'know' of the alleged defect since no representati......
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Crouch v. Truman
...time of decision on appeal. Rogers v. Ziller, Miss., 49 So.2d 736; Woods v. First National Bank, 9 Cir., 16 F.2d 856; Bayuk v. Feldman, 11 N.J.Super. 317, 78 A.2d 282. Even had this attempt to correct the record been timely made, the procedure followed by this certificate is not such as is ......
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