Rosskam v. Curtis — 44 N.Y.S. 198

Majority

p. 198

(15 App. Div. 190.)

ROSSKAM et al. v. CURTIS.

(Supreme Court, Appellate Division, Third Department.

March 8, 1897.)

Headnote

Appeal—Dismissal—Absence of Papers from Record.

Respondent is not entitled to a dismissal of the appeal because of the absence from the appeal book of papers which he had used in the trial court, but neglected to file.

Appeal from special term.

Action by Isaac Rosskam and others against Fred Curtis. Respondents (plaintiffs) move to dismiss the appeal. Denied. -

Argued before PARKER, P. J., and LAND Olí, HERRICK, MER-WIN, and PUTNAM, JJ.

J. W. Atkinson, for appellant.

Thomas O’Connor, for respondents.

The certificate of the clerk shows that the appeal book contains copies of all the papers filed in his office. The papers whose absence from the appeal book is complained of by the respondents were the papers and proceedings used by them upon the motion. If they had neglected to file them, they should not now be permitted to have the appeal dismissed because of their absence from the appeal book.