Hartford Insurance v. Weinstein 57 A.D.2d 1080

Order unanimously affirmed, without costs. Memorandum: This appeal from the settlement of an appeal record is limited by the parties to one paragraph in the order which deleted and struck from the record a certain letter. Defendant-appellant claims that the letter was annexed to the plaintiff-respondent’s complaint as an exhibit and should therefore be included. Respondent and a second defendant, not a party to this appeal, deny that the letter was an exhibit to respondent’s complaint. It is agreed that there were three exhibits marked "A”, "B” and "C” annexed to the complaint. The alleged letter exhibit was not one of them and carried no alphabetical designation. It is conceded that the only complaint before Special Term was the copy submitted by the respondent who states categorically that the copy did not contain the letter in question. Inasmuch as Special Term did not have the alleged annexed letter before it when it decided the motions which are the subject of the appeal in chief, the deletion of the letter from the record was a proper exercise of the court’s discretion. (Appeal from order of Erie Supreme Court — settlement of record on appeal.) Present — Moule, J. P., Simons, Dillon, Goldman and Witmer, JJ.