Balch v. Balch

193 A.D.2d 1080, 598 N.Y.S.2d 1022

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 28, 1993
• Docket: Appeal No. 2
• Status: Published

Opinion

—Order unanimously affirmed with costs. Memorandum: The court properly settled the original record on appeal to include those papers, transcripts, evidentiary exhibits, etc., that related to the judgment of divorce appealed by defendant (see, CPLR 5526). The court properly excluded the disputed items from the original record on appeal because those items either related to a preliminary order not appealed by defendant (see, CPLR 5526) or were not considered by the court in rendering judgment.

The court erred in disallowing defendant’s attempt to compile a record on his appeal from denial of this motion to settle the original record. Nonetheless, we disregard that error because it was harmless and did not prejudice a substantial right of defendant (see, CPLR 2001). Although the disputed items were improperly excluded from the second record, they were properly excluded from the first. Therefore, the substantive issues on the first appeal (Balch v Balch [appeal No. 1], 193 AD2d 1079 [decided herewith]) must be decided without reference to those items. (Appeal from Order of Supreme Court, Onondaga County, Murphy, J.—Settle Record.) Present—Den-man, P. J., Pine, Balio, Boomer and Davis, JJ.