Murrer v. Stoltz

• Order unanimously reversed, without costs of this appeal to any party, and motion denied, without costs and without prejudice. Memorandum: The record contains an affidavit verified by plaintiffs’ attorney on May 11, 1964 which was not before Special Term on April 9, 1964 when it signed the order appealed from. Although the parties have stipulated that the record, including such affidavit “are true and correct copies of all papers and pleadings before the Court below and upon which the order appealed from was made ” and have both based their arguments on such affidavit, we have decided, in the exercise of discretion, not to consider it. The affidavit contains matters which are both, relevant - and important tó a determination of the motion and in the interests of justice plaintiffs should be afforded an opportunity to properly present such matters in opposition to the motion. To implement this, we conclude that the *811order should be reversed without prejudice. Respondent may then make such motion as- it may be advised and on such motion appellants will have an opportunity to interpose affidavits of facts which are not properly in this record in opposition thereto. (Appeal from order of Monroe Special Term, dismissing the complaint for lack of prosecution as against Greece Central School District.) Present — Williams, P. J., Bastow, Goldman, Henry and Noonan, JJ.