Percy v. Cohalan

Order affirmed, without costs. We may not consider on this appeal the affidavits submitted by the appellant upon the argument of the appeal. They were not before the Special Term when it considered the application herein. In its decision the Special Term stated that no facts were presented to it for determination. In view of the record, that conclusion was proper (Matter of Shaeffer, 237 App. Div. 278). This ease is, therefore, to be distinguished from Matter of Belford v. Board of Elections of Nassau County (306 N. Y. 70). Wenzel, Acting P. J., Murphy, Ughetta and Hallinan, JJ., concur; Kleinfeld, J., dissents and votes to reverse the order and to deny the application.