Schlesinger v. Mendelson — 129 N.Y.S. 44

Majority

p. 44

SCHLESINGER v. MENDELSON et al.

(Supreme Court, Appellate Term.

May 4, 1911.)

Headnote

Courts (§ 190^[1] )—Municipal Court—Appeal—Record.

Where, on appeal from an order of the Municipal Court refusing to open a default judgment, made on the pleadings and proceedings in the action, the clerk returned only the motion papers and orders, the Appellate Term will remit the case to the Municipal Court, and direct the clerk to return the pleadings and the record of all the proceedings in the action.

[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.^[1] ]

p. 45

Appeal from Municipal Court, Borough of Manhattan, Third District.

Action by Abraham Schlesinger against Isaac Mendelson and another. From an order denying a motion to open a default judgment, defendants appeal.

Record remitted.

Argued before SEABURY, LEHMAN, and GERARD, JJ.

Feltenstein & Rosenstein (Moses Feltenstein, of counsel), for appellants.

Cohen Bros. (Alfred A. Walter, of counsel), for respondent.

This is an appeal from an order denying a motion to open a default and to vacate a judgment entered against the defendants. The order appealed from was made upon the pleadings and all the proceedings had in the action. The clerk of the Municipal Court has returned to this court only the motion papers and orders, and has failed to return the pleadings and a record of the other proceedings which have been taken in this action. These proceedings appear, from the order appealed from, to have been considered by the court below, and have an important bearing upon the question to be determined.

The record is remitted to the court below, and the clerk is directed to return to this court the pleadings and the record of all other proceedings had in this action.