Opinion
February, 1905.
Campbell Thayer (Douglas Campbell, of counsel), for appellant.
George B. Hayes, for respondent.
The moving affidavit does not make any mention of a note of issue having been filed, while the opposing affidavits expressly allege that none was filed, and that the case was not upon the general calendar. Upon the record, therefore, the motion was prematurely made, and the order granted in direct violation of the rules of the City Court, which, among other things, provide, that in actions similar to this, the cause may be placed upon the special calendar "where a note of issue has been filed."
Although the ordinary rule in motions of this character is that their disposition is within the judicial discretion of the court to which the motion is originally addressed, this case seems to be one which it might become our duty to review. Herzfeld v. Strauss No. 2, 24 A.D. 95.
It is claimed, however, that the record does not contain all the papers used upon the hearing of the motion.
Section 1353 of the Code of Civil Procedure, made applicable to appeals to the Appellate Term by section 1344, requires that: "An appeal * * * from an order * * * must be heard upon a certified copy of the notice of appeal, and of the papers used * * * upon the hearing of the * * * motion."
Rule 41 of the General Rules of Practice provides that "The papers in all appeals from nonenumerated motions shall consist of printed copies of the papers which were used in the court below, and are specified in the order, certified by the proper clerk, or stipulated by the parties to be true copies of the original, and of the whole thereof."
In the case at bar, it is obvious that all the papers used were not printed in the record.
The notice of motion specifies the pleadings, and the order recites the motion papers, but only the amended answer is contained in the record presented. The respondent claims that there are other omissions, and especially an order of the City Court, entered prior to the day the motion under review was made, directing that this case be placed on the calendar; but we are unable to say from any thing before us in the printed record whether there was any such order or not.
Under these circumstances, the appeal should be dismissed with costs to the respondent.
SCOTT and McCALL, JJ., concur.
Appeal dismissed, with ten dollars costs and disbursements to respondent.