Opinion
February 10, 1958
Present — Nolan, P.J., Wenzel, Beldock, Murphy and Ughetta, JJ.
This motion, while nominally to authorize appellant "to limit the printing of the record solely to the testimony pertaining to the trade fixtures for which an award of $6,500.00 was made by the Commissioners" is, in reality, intended as a motion: (a) to abridge the record or case on appeal by omitting therefrom a certain portion which appellant claims to be unnecessary for a consideration of the points to be raised by it on the appeal, and (b) to settle the case on appeal as thus abridged. The scope of this appeal, as indicated by the notice of appeal, would appear to require that a case be settled in accordance with the provisions of the Civil Practice Act applicable to an appeal from a judgment after trial in an action in the Supreme Court (Condemnation Law, § 19). Motion denied, without costs, and without prejudice to a subsequent motion to dispense with printing, as indicated below. A motion, such as this one — to abridge the contents of the record to be presented on an appeal — must be addressed to the Trial Justice. "Proper practice requires that the case on appeal be settled by the trial justice and not by this court" ( Hopper v. Comfort Coal-Lumber Co., 276 App. Div. 869, and authorities there cited; Boylan v. Southern Pacific Co., 253 App. Div. 195; People ex rel. Lowenstein v. Lowenstein, 281 App. Div. 699). Appellant's attention, however, is called to the fact that, in view of the restricted nature of this appeal involving a condemnation proceeding, the proposed abridgement of the record may prevent a consideration of the merits of the appeal (cf. Condemnation Law, § 15; Matter of New York Municipal Ry. Corp. v. Holliday, 189 App. Div. 814, affd. 228 N.Y. 561). Of course, after the case has been settled, appellant, if so advised, may make a motion in this court to dispense with the printing of any portion of the settled case or for permission to submit such portion in typewritten or other form.