Guarnacci v. Ferguson

29 A.D.2d 839, 287 N.Y.S.2d 471, 1968 N.Y. App. Div. LEXIS 4582

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 22, 1968
• Status: Published

Opinion

Case stricken from the calendar with leave to appellant to move to restore upon proof that a proper record on appeal has been filed. Memorandum: The abbreviated record on appeal is completely inadequate to permit a decision of the issues presented. In particular the alleged error of the trial court in instructing the jury as to the respective duties of the pedestrian plaintiff and defendant motorist may not be passed upon with none of the pertinent trial evidence in the record or otherwise before us. If plaintiff elects to press this appeal the pertinent portions of the stenographer’s minutes should be obtained, a supplemental record prepared and submitted to the Trial Justice for settlement upon whom the responsibility rests to make certain that an adequate record is being submitted to this court. This duty may not be avoided because counsel for the respective parties, as was done herein, stipulate that a patently insufficient record meets with their approval. (Appeal from judgment of Oneida Trial Term dismissing complaint in action for damages for personal injuries.) Present — Williams, P. J., Bastow, Goldman, Del Yecchio and Marsh, JJ.