Smith v. Kelly — 7 N.Y.2d 803

Majority

p. 803

Carol Smith, Appellant, v. Peter Kelly et al., Respondents.

Argued November 16, 1959;

decided November 25, 1959.

p. 804

Thomas Grimes and Louis J. Castellano, Jr., for motion and opposed to cross motion.

Henry J. O’Hagan and Stanley D. Hicks opposed to motion and for cross motion.

John D. Kelly opposed to motion.

Motion for an order settling the record on appeal in this court by excluding therefrom the minutes of the original trial granted.

Motion to exclude from the record certain specified exhibits denied upon the ground that the motion has become academic by reason of the loss of the exhibits in the mails, without prejudice to a renewal thereof upon argument of the appeal in the event the exhibits be found prior thereto.

p. 805

Cross motion to dismiss the appeal or, in the alternative, to include in the record on appeal the minutes of the original trial denied.

Cross motion to include in the record on appeal an affidavit of counsel as to the contents of certain specified exhibits denied upon the ground that it has become academic because of the agreement of the parties that the record contain the affidavit, without prejudice to respondents to move upon argument of the appeal to include said exhibits in the record in the event they be found prior thereto.