Whipple v. Ripson — 29 A.D. 70

Majority

p. 70

George C. Whipple, Appellant, v. John D. Ripson and William J. Nowack, Respondents.

Headnote

Appeal from an order—the record must contain all the papers used below.

On appeal from orders all the papers used in the court below must be contained in the record, and all such papers must be referred to in the order disposing of the motion; otherwise an appeal from the order will not be entertained.

Appeal by the plaintiff, George C. Whipple, from an order of the Supreme Court, made at the Monroe Special Term and entered

p. 71

in the office of the clerk of the county of Monroe on the 18th day of January, 1898, denying said plaintiffs motion to vacate and set aside a judgment, entered in the office of the clerk of the county of Monroe on the 27tli day of November, 1897, upon the decision of the court rendered after a trial at the Monroe Equity Term, upon the ground that such decision was insufficient to authorize the entry of said judgment.

Herbert J. Stull, for the appellant.

William H. Sullivan, for John D. Ripson, respondent.

Frederick A. Mann, for William J. Nowack, respondent.

The notice of motion recites that it was made on the judgment roll tiled in the office of the clerk of the county of Monroe November 27, 1897, and upon certain affidavits. The affidavits do not disclose the issues raised by the. pleadings. The judgment roll, which is the foundation for the motion, and which must have been read in the court below, or regarded as read, is not contained in the record, and the court has no means of knowing what issues were raised by the pleadings, or decided by the court when the case was tried. On appeals from orders all the papers used in the court below must be contained in the record, and all such papers must be referred to in the order disposing of the motion; otherwise an appeal from the order will not be entertained.

Neither party having taken any steps to correct the record or objected thereto, the appeal should he dismissed, without costs to either party.

All concurred.

Appeal dismissed, without costs to either party.