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Davis v. Reflex Camera Co.

90 N.Y.S. 877 Court N.Y. App. Div. Decision date 1904-12-01 English

Contents

Majority

p. 877
(99 App. Div. 567)
DAVIS v. REFLEX CAMERA CO.
(Supreme Court, Appellate Division, Second Department.
December 1, 1904.)

Headnote

1. Appeal-Undertaking—Order Disapproving Undertaking—Requisites of Order.
On an order denying a motion tb resettle an order disapproving an undertaking on appeal, appellant was entitled to a full recital in the order of all papers used or read on the motion,
ü. Same—Amendment of Order on Appeal.
On appeal from an order denying a motion to resettle an order disapproving an undertaking on appeal, appellant is not entitled to have the order amended by stating the specific ground of disapproval, since that would be to direct the decision on that particular ground.
Appeal from City Court of Yonkers.
Action by Edward P. Davis against the Reflex Camera Company. Appeal by defendant from an order denying a motion to resettle an order disapproving an undertaking on appeal.
Appeal dismissed.
See 89 N. Y. Supp. 587 .
Argued before HIRSCHBERG, P. J., and BARTLETT, WOODWARD, JENKS, and HOOKER, JJ.
Wm. Riley, for appellant.
Arthur Rowland, for respondent.

Clearly, the defendant is entitled to a full recital of all papers used or read on the motion. Farmers’ National Bank v. Underwood, 12 App. Div. 269 , 42 N. Y. Supp. 500 . We think, however, that the recital in the present order is sufficient to show that the court was moved to disapprove the undertaking on the ground that the surety, Holst, did not subscribe his true name to it, and that the court read and filed such alleged defective undertaking and the deposition of the said surety on the undertaking. So far as the appellant seeks to have the order amended by stating the specific ground of the disapproval, it cannot prevail, for that, in effect, would be to direct the decision on that particular ground. Hall v. Gilman, 87 App. Div. 248 , 84 N. Y. Supp. 279 .

The appeal should be dismissed, with $10 costs and disbursements.

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