Whipple v. Ripson — 51 N.Y.S. 635

Majority

p. 635

WHIPPLE v. RIPSON et al.

(Supreme Court, Appellate Division, Fourth Department.

May 7, 1898.)

Headnote

Appeal—Record—Sufficiency.

On appeal from an order, all papers used in the court below must be in the record, and be referred to in the order.

Appeal from special term, Monroe county.

Action by George C. Whipple against John D. Eipson and another. Plaintiff appeals from an order denying a motion to set aside the judgment.

Dismissed.

Argued before HARDIN, P. J., and FOLLETT, ADAMS, GREEN, and WARD, JJ.

p. 636

John M. Stull, for appellant.

William H. Sullivan, for respondent John D. Ripson.

Frederick A. Mann, for respondent William J. Nowack.

The notice of motion recites that it. was made on the judgment roll, filed in the office of the clerk of the county of Monroe, November 27, 1897, and upon certain affidavits. The affidavits do not disclose the issues raised by. the pleadings. The judgment roll, which is the foundation for the motion, and which must have been read in the court below, or regarded as read, is not contained in the record; and, the court has no means of knowing what issues were raised by the pleadings, or decided by the court, when the case was tried. On appeals from orders, all the papers used in the court below must be contained in the record, and all such papers must be referred to in the order disposing of the motion; otherwise, an appeal from the order will not be entertained.

Neither party having taken any steps to correct the record, or objected thereto, the appeal should be dismissed, without costs to either party.