Isaac Rosskam, Respondent, v. Frederick Curtis, Appellant

Isaac Rosskam, Respondent, v. Frederick Curtis, Appellant. Appeal—not dismissed because of the absence of papers, not filed by the respondent. Where the certificate of the clerk shows that the appeal book contains all the papers in an action which had been filed in the clerk’s office, the respondent is not entitled to have the appeal dismissed, because of the absence from the appeal book of papers which it was his duty to, and which he did not, file. Motion by the respondent, Isaac Rosskam, to dismiss an appeal pending in the Appellate Division of the third department. J. W. Atkinson, for the appellant. Thomas O’Connor, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : The certificate of the clerk shows that the appeal book contains copies of all the papers filed in his office. The papers whose absence from the appeal book is complained of by the respondent were the papers and proceedings used by him upon the motion. If he has neglected to file them, he should not now be permitted to have the appeal dismissed because of their absence from the appeal hook. All concurred. Motion denied.