Hyperlawhypertext legal database Deders v. Wood 156 N.Y.S. 605

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Deders v. Wood

156 N.Y.S. 605 Court Argued November term, 1915, before LEHMAN, BIJUR, and FINCH, JJ. Decision date 1916-01-07 English

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p. 605
DEDERS v. WOOD.
(Supreme Court, Appellate Term, First Department.
January 7, 1916.)

Headnote

1. Appeal and Ebb or @=3494—Record on Appeal—Judgment Roll.
Where the record on appeal does not contain the judgment, roll or a stipulation with regard thereto, it is incomplete, and cannot be considered.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2285, 2286; Dec. Dig. @=3494.]
2. Appeal and Error @=>657—Record on Appeal—Correction.
Where the record on appeal omits the judgment roll, the omission may be corrected on motion to remit the record to the trial court, wherein motion may be made for resettlement of the ease.
[Eel. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2830-2833; Dec. Dig. @=3657.]
<§^For oth'er cases see same topic & KEY-NUMBEIt in all Key-Numbered Digests & Indexes
_Appeal from Municipal Court, Borough of the Bronx, Second District.
Action by Frederick Deders against Joseph M. Wood. From a judgment for plaintiff, defendant appeals. On account of defective record, case returned to files of Appellate Term of Supreme Court.
Argued November term, 1915, before LEHMAN, BIJUR, and FINCH, JJ.
Louis J. Rosett, of New York City (Allan A. Deutsch, of New York City, of counsel), for appellant.
George R. Simpson, of New York City (Louis Susman, of New York City, of counsel), for respondent.

[1] Appellant contends that the record as transmitted to this court is not complete. When this case was previously

p. 606
before this court ( 153 N. Y. Supp. 938 ), it was remitted to the lower court for the purpose of having the trial justice return whether or not, at tire time judgment was directed, the defendant had finished his testimony and rested his case. Return has now been made, namely, that defendant had finished his testimony and rested his case. The record seems still to be incomplete. The judgment roll, marked Plaintiff’s Exhibit I, is not attached to the record, and there is no stipulation in reference to the same.

[2] If, as appellant contends, the record is incomplete in this and other respects, his remedy is by motion before this court, on notice to plaintiff’s attorney, to have the record remitted to the lower court for the purpose of allowing defendant to move before the trial justice in the first instance for a resettlement of the case.

Case returned to files of this court.