Thousand Island Park Ass'n v. Gridley

25 A.D. 499, 49 N.Y.S. 722

Opinion

Ward, J.:

The purpose of the motion, which resulted in the order appealed from, was to correct the record upon an appeal from a former order,, so as to insert in such record an important affidavit that had been made and read upon the motion which resulted in the first .order. (Rule 3 of the General Rules of Practice requires that, when an order is entered, all the papers used or read on the motion on either side shall be specified in the order, and shall be filed with the clerk unless already on file or otherwise ordered by the court.)

It is not denied but that an important affidavit was made and read upon the motion on behalf of the defendant, and that it was not-recited in the order nor filed nor made a part of the record. The defendant was entitled to have this done, and the court at Special Term was in error in imposing a condition upon this manifest right of the defendant. The affidavit was inadvertently omitted from the record, and the papers upon this appeal disclose a sufficient excuse for such omission.-

The order appealed from should be reversed, with ten dollars costs, |nd the motion to correct the record granted, with ten dollars costs.

All concurred.

Order reversed, with ten dollars costs and disbursements; motion granted, with ten dollars costs.