Majority
p. 358TEDFORD v. LICHTENSTEIN. (Supreme Court, Appellate Division, First Department. December 11, 1908.) Argued before INGRAHAM, McLAUGHLIN, HOUGHTON, CLARKE, and SCOTT, JJ.
Headnote
Appeal and Error (§ 648[1] )—Record—Certificate of Clerk—Cancellation.Motion will not lie at Special Term to cancel the certificate of the clerk to the record; the question as to whether or not the record filed in the Appellate Division is the proper record being one for it, and not for the Special Term.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 2803; Dec. Dig. § 648.*]
Appeal from Special Term, New York County.
Action by James A. Tedford against Solomon Lichtenstein. Erom an order granting a motion to cancel certificate of the clerk, plaintiff appeals.
Reversed, and motion denied.
Edwin J. Johnson, for appellant.
Edwin D. Hays, for 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
p. 359
as the papers upon which the same was granted. The question as to whether or not the record filed 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 $10 costs and disbursements, and the motion denied.