Herring v. City of Syracuse

May 26, 1978
Versions:63 A.D.2d 833
406 N.Y.S.2d 409
1978 N.Y. App. Div. LEXIS 11800

Order and judgment unanimously affirmed, without costs. Memorandum: The notice of appeal from the verdict of no cause for action, rendered on April 22, 1976 and from the rulings of the Trial Justice was served on May 19, 1976. Plaintiffs motion to set aside the verdict and for judgment notwithstanding the verdict was denied by letter from the Trial Justice dated May 12, 1976, and no formal order appears to have been entered thereon. Judgment on the verdict was entered on May 21, 1976, two days after service of plaintiffs purported notice of appeal from the verdict. The stipulated record omitted the motion and supporting papers to set aside the verdict and for judgment notwithstanding the verdict. Respondents made no objection to the notice of appeal. Since argument of the appeal, plaintiff has moved this court for resettlement of the record to include the motion, and supporting papers, to set aside the verdict and for judgment notwithstanding the verdict, and respondents object. "Where a notice of appeal is premature or contains an inaccurate description of the judgment or order appealed from, the appellate court, in its discretion, when the interests of justice so demand, may treat such a notice as valid” (CPLR 5520, subd [c]; and see People ex rel. Breedan v Zelker, 41 AD2d 669; Matter of Lust, 35 AD2d 997). Accordingly, we treat the appeal as from the judgment and also from the order denying the motion to set aside the verdict; and, in the interests of expediting disposition of this appeal, since the papers in support of the motion contain nothing new or surprising to respondents, we grant the motion, unusual for this court, to make them a part of the record on appeal. In light of the evidence presented by respondents in justification for the shooting of the deceased, and the provisions of section 35.30 of the Penal Law and the discussion thereof by Arnold D. Hechtman (Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 35.30, pp 115-117) we affirm the order of Trial Term denying the motion to set aside the verdict. A substantial issue of fact was presented for the jury. We find no merit to any of the arguments raised by plaintiff as to alleged trial errors. No error of substance was made or preserved for review by objection or exception; and we find no basis for reversal in the interests of justice. (Appeal from order and judgment of Onondaga Supreme Court—wrongful death.) Present—Marsh, P. J., Cardamone, Simons and Witmer, JJ.