Underwood Typewriter Co. v. Driscoll — 137 N.Y.S. 871

Majority

p. 871

UNDERWOOD TYPEWRITER CO. v. DRISCOLL.

(Supreme Court, Appellate Term, First Department:

November 8, 1912.)

Headnote

Appeal and Error (§ 657*)—Record—Return—Amendment.

An appeal from an order denying the motion to set aside a judgment on the ground of fraud, reciting that “upon the minutes in the above-entitled action, * * * and upon the minutes in the case of Underwood Typewriter Co. v. Lionel Realty Co.,” etc., the motion is denied, in which the minutes taken in the action referred to are not handed up with the return, will be remitted to the lower court for amendment.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2830-2833; Dec. Dig. § 657.*]

4 For other cases see same topic & $ number in Dec. & Am. Digs. 1907 to. date, & Rep’r Indexes

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

Action by the Underwood Typewriter Company against Martin A. Driscoll. From a judgment of the Municipal Court in favor of thp

p. 872

plaintiff, and also from an order denying a motion to set aside said judgment, defendant appeals. Return remitted to lower court for amendment.

Argued October term, 1912, before SEABURY, GUY, and BI-JUR, JJ.

Charles Harwood, of New York City, for appellant.

Wilber, Norman & Kahn, of New York City, .for respondent.

There are two appeals in this case—one from the judgment taken against the defendant, and one from an order denying a motion to set aside the judgment upon the ground of fraud, etc.

The order appealed from recites that “upon the minutes in the above-entitled action, * * * and upon the minutes in the case of Underwood Typewriter Co. v. Lionel Realty Co.,” etc., the motion is denied. The minutes taken in the last-named action have not been handed up with the return herein, and it is evident that the appeal from the order cannot be determined until such minutes are made a part of the return.

The return is therefore remitted to the lower court for amendment in that respect.