Hyperlawhypertext legal database Muller v. City of Philadelphia 129 N.Y.S. 1037

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Muller v. City of Philadelphia

129 N.Y.S. 1037 Court N.Y. App. Div. Decision date 1911-05-26 English

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p. 1037
MULLER et al. v. CITY OF PHILADELPHIA et al.
(Supreme Court, Appellate Division, First Department.
May 26, 1911.)

Headnote

Appeal and Ebbor (§ 635[1] )—Record—Contents oe Record—Omissions— Judgment Roll.
Under Code Civ. Proc. § 1353, providing that an appeal from a final judgment must be heard upon a certified copy of the notice, of the judgment roll, and of the case or notice of exceptions, a respondent is entitled, as a matter of right, to have the entire judgment roll before the court on the hearing of the appeal, and the court has no authority to allow the appeal to be heard without a complete copy of the judgment roll.
[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 635.[1] ]
Action by Charles F. Muller and others, executors of and trustees under the will of Thomas W. Evans, deceased, against the City of Philadelphia and others. There was a judgment for defendants, and plaintiff moves to eliminate from the papers upon which the appeal is heard certain portions of the judgment roll.
Motion denied.
See, also, 55 Misc. Rep. 30 , 104 N. Y. Supp. 782 .
Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.
J. Power Donellan, for the motion.
J. Noble Hayes and D. C. Myers, opposed.

In the absence-of consent by the respondent, the court has no authority to allow the appeal to be heard without fur

p. 1038
nishing a complete copy of the judgment roll. Section 1353 of the Code of Civil Procedure especially requires that an appeal from a final judgment must be heard upon a certified copy of the notice of appeal, of the judgment roll, and of the case or notice of exceptions, if any, filed as prescribed by law or the general rules of practice. Under this section the respondents are entitled as a matter of right to have the entire judgment roll before the court on the hearing of the appeal. In this case it is stated that there.are several appeals from the judgment by different defendants. These appeals should all be consolidated and heard upon one record, so that the questions can be disposed of at- one time. Of course, if the parties consent, portions_ of the judgment roll not pertinent to the several appeals can be eliminated from the record on which the appeal is to be heard; but without such consent the whole judgment roll to be printed.

The motion is therefore denied, without costs.