Charles Hutchinson, Respondent, v. Mary F. Root, Appellant

Charles Hutchinson, Respondent, v. Mary F. Root, Appellant. Practice—Motion to Dismiss Appeal — Copt op Return. Upon a motion, in the Court of Appeals, to dismiss an appeal, upon the ground that the Appellate Division unanimously decided that there was evidence supporting or tending to sustain the findings of fact, and that the exceptions taken upon the trial were frivolous, the moving party should furnish the court with at least one copy of the return or of the record in the court below. Reported below, 3 App. Div. 584. (Argued June 7, 1897; decided June 15, 1897.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered upon an order made March 20, 1896, which affirmed a judgment in favor of plaintiff entered upon the report of a referee. The grounds of the motion are stated in the opinion. William JR. Wilder and Frederic D. Philips for motion. Hol/mes (& Adams opposed. [MAJORITY — Martin, J.] Martin, J. Motion to dismiss the defendant’s appeal based principally upon the ground that the Appellate Division unanimously decided that there was evidence supporting or tending to sustain the findings of the referee, and that the exceptions taken upon the trial were frivolous. An examination of the papers submitted upon the motion discloses that no copy of the record in the court below or of the return to this court is contained therein. Without a copy of the record before us we are unable to determine thé coirectness of the claim of the respondent in either of those respects. Upon such a motion the moving party should furnish the court with at least one copy of the record to enable it to examine those questions. If any reason exists why he cannot, it should be stated in the moving papers. We can hardly suppose a case where the moving party cannot furnish a copy of the return or at least a copy of the record in the court below. Should such a case arise it may become the duty of the court to direct the clerk to present the original return. The plaintiff having moved to dismiss the appeal upon the ground stated, it was his duty to furnish the court with the proper papers showing the existence of the facts upon which he relies. There are other technical grounds upon which the plaintiff asks for the dismissal of this appeal; those we have examined, but regard them as insufficient to justify us in granting the motion. It follows that the motion should be denied, with ten dollars costs. All concur. Motion denied.