Abdella v. Scribner

Appellate Division of the Supreme Court of New York

Abdella v. Scribner

48 A.D.2d 280, 369 N.Y.S.2d 223, 1975 N.Y. App. Div. LEXIS 9874

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 12, 1975

StatusPublished

This text of 48 A.D.2d 280 (Abdella v. Scribner) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Abdella v. Scribner, 48 A.D.2d 280, 369 N.Y.S.2d 223, 1975 N.Y. App. Div. LEXIS 9874 (N.Y. Ct. App. 1975).

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Opinion

Per Curiam.

Upon the original appeal by the petitioner to this court involving the merits of the case, the respondents had moved for an order requiring certain testimony to be included in the record. That motion was denied without opinion and without costs by the court. Thereafter, the respondent included the disputed testimony or portions thereof in an appendix and this court affirmed the judgment appealed from with costs to respondents (Matter of Abdella v Scribner, 37 AD2d 917).

Before Special Term, the petitioner contended that the majority of the testimony printed in the respondents’ appendix upon the original appeal to this court was irrelevant and immaterial and that, accordingly, the judgment entered upon the affirmance of this court should not have included any allowance for such testimony. Pursuant to CPLR 5528 (subd [e]), costs related to the filing of an appendix are for "the [281]*281court to which the appeal is taken” to determine. In Kimberly-Clark Corp. v Power Auth. of State of N. Y. (34 AD2d 1095) it was noted that the question of costs for appendix matters was to be determined when the appeal is decided on the merits. (See, also, Kimberly-Clark Corp. v Power Auth. of State of N.Y., 35 AD2d 330, 338, 339; cf. Bohl Contr. Co. v Depot Constr. Corp., 42 AD2d 812, 814.)

Accordingly, any question as to the allowance of costs for appendix materials should have been raised in this court prior to entry of judgment upon our order in the original appeal. For this reason we do not reach the merits of whether or not the respondents were entitled to the allowance of costs for the printing of the appendix. The original order of this court is final and conclusive upon that issue in the context of this proceeding.

The order should be affirmed, without costs.

Herlihy, P. J., Greenblott, Kane, Main and Larkin, JJ., concur.

Order affirmed, without costs.

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Per Curiam.

Upon the original appeal by the petitioner to this court involving the merits of the case, the respondents had moved for an order requiring certain testimony to be included in the record. That motion was denied without opinion and without costs by the court. Thereafter, the respondent included the disputed testimony or portions thereof in an appendix and this court affirmed the judgment appealed from with costs to respondents (Matter of Abdella v Scribner, 37 AD2d 917).

Before Special Term, the petitioner contended that the majority of the testimony printed in the respondents’ appendix upon the original appeal to this court was irrelevant and immaterial and that, accordingly, the judgment entered upon the affirmance of this court should not have included any allowance for such testimony. Pursuant to CPLR 5528 (subd [e]), costs related to the filing of an appendix are for "the [281]*281court to which the appeal is taken” to determine. In Kimberly-Clark Corp. v Power Auth. of State of N. Y. (34 AD2d 1095) it was noted that the question of costs for appendix matters was to be determined when the appeal is decided on the merits. (See, also, Kimberly-Clark Corp. v Power Auth. of State of N.Y., 35 AD2d 330, 338, 339; cf. Bohl Contr. Co. v Depot Constr. Corp., 42 AD2d 812, 814.)

Accordingly, any question as to the allowance of costs for appendix materials should have been raised in this court prior to entry of judgment upon our order in the original appeal. For this reason we do not reach the merits of whether or not the respondents were entitled to the allowance of costs for the printing of the appendix. The original order of this court is final and conclusive upon that issue in the context of this proceeding.

The order should be affirmed, without costs.

Herlihy, P. J., Greenblott, Kane, Main and Larkin, JJ., concur.

Order affirmed, without costs.

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Bluebook (online)

48 A.D.2d 280, 369 N.Y.S.2d 223, 1975 N.Y. App. Div. LEXIS 9874, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abdella-v-scribner-nyappdiv-1975.

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