40 N.Y.S. 934 | N.Y. App. Div. | 1896
We do not think that the court below had any power to grant this order. The order appealed from recited as one of the papers upon which the motion had been decided the affidavit of Charles H. T. Collis on behalf of the commissioner of public works of the city of New York, not a draft affidavit, a copy of which had been served upon the relator, and the general rules of practice require that the appeal should be heard, not upon the papers that had been served, but upon the papers that were before the court when the motion was granted. If the printed papers upon appeal were not the court papers that were recited in the order of the court, the proper remedy of the relator was an application to the appellate court to correct the printed papers tnat had been filed and served under the provisions of the rule. So long as the order remained in the form in which it was entered, the court below had no right to require the appeal to be heard upon different or other papers than those upon which the motion was decided and the order entered. The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion below denied, with ten dollars costs. Present—Barrett, Rumsey, Patterson and Ingraham, JJ.
