Swersky v. A. Greene & Co.

Concur — Breitel, J. P., Rabin, Valente and Stevens, JJ.; McNally, J., dissents in the following memorandum: I dissent and vote to deny the application for an order granting leave to the appellant to dispense with the printing of the record on appeal and for further relief. On April 25, 1961 motions were made by the various defendants-respondents in this court seeking dismissal of the appeal on the ground that the plaintiff-appellant failed to perfect and complete the record on appeal in accordance with our rules. In opposition to the motion to dismiss, an affidavit was submitted on behalf of plaintiff-appellant in which it was alleged “ that the plaintiff intends in all good faith and with dispatch to diligently prosecute the within appeal and will in fact perfect and complete the record on appeal at the June Term of this Court”. By order dated May 4, 1961 this court unanimously ordered that the motions to dismiss the appeal herein be granted “unless the appellant procures the record on appeal and appellant’s points to be served and filed on or before *534August 15, 1961 with notice of argument for the September 1961 Term of this Court, said appeal to be argued or submitted when reached ”, At the time appellant opposed the motion to dismiss there was no suggestion that he would require the present relief, and the request for the instant relief was not made until after this court had granted the motion to dismiss as aforesaid. In other words, our conditional dismissal prompted the application. In my opinion the motion should be denied, with costs.