Majority
p. 35James A. Tedford, Appellant, v. Solomon Lichtenstein, Respondent. First Department, December 11, 1908.
Headnote
Appeal from order—sufficiency of record.The record on an appeal from an order should consist of the papers recited in the order appealed from as the papers úpon which the same was granted.
The sufficiency of a record filed on an appeal to the Appellate Division must be determined by that court and not by the Special Term.
If the papers served are those not required by the General Rules of Practice the respondent may move in the Appellate Division to dismiss the appeal.
Appeal by the plaintiff, James A. Tedford, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county.of New York on the 24th day of July, 1908, canceling a certificate of the clerk attached to papers on appeal from an order opening the default of the defendant herein.
Edwin J. Johnson, for the appellant.
Edwin D. Hays, for the respondent.
It is clear that the record upon which an appeal is to be heard consists of the papers recited in the order appealed from as the papers upon which the same was granted. The question as to whether or not the record tiled in this court is the proper record is one which must be determined by this court and not by the Special Term. If the papers served are not those required by the General Rules of Practice, the respondent can move in this court to dismiss the appeal.
The order should be reversed, with ten dollars costs and disbursements, and the motion denied.
Present — Ingraham, McLaughlin, Clarke, Houghton and Scott, JJ.
Order reversed, with ten dollars costs and disbursements, and motion denied.