Town & Country House & Home Service, Inc. v. Newbery

Supreme Court of New York, Appellate Division, Second Department · 1962 · Corporations

CorporationsAppellate Procedurenotice of appealrecord on appealappellate jurisdictiondismissal of appealorder versus judgment

Facts

The plaintiff brought an action seeking an injunction, an accounting, and damages. According to the notice of appeal, the plaintiff appealed from an order entered May 23, 1962 that adjudged the plaintiff have judgment against the defendants for $850, with costs. That order was not printed in the record on appeal. The record instead contained an order and judgment dated August 20, 1962, which apparently was made upon the order appealed from, but it was not the paper described in the notice of appeal.

Issue

Whether the appeal could be heard when the order identified in the notice of appeal was not included in the record on appeal, and the record instead contained a different order and judgment not specified in the notice.

Rule

An appellate court must dismiss an appeal when the paper described in the notice of appeal is not the paper contained in the record on appeal. A different order or judgment, even if apparently made upon the order appealed from, is not properly before the court if it is not the paper identified in the notice of appeal.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Lakeview Property Services, Inc. sued two former officers in Buffalo for an injunction and damages. Its notice of appeal states that it appeals from an order entered March 4, but the record on appeal contains only a later judgment entered April 18 that was entered upon the March 4 order.

How should the appellate court rule?

Explanation. The appeal must be dismissed. The controlling rule is that the appellate court may review only the paper described in the notice of appeal and contained in the record. A different later judgment, even if made upon the identified order, is not properly before the court when it is not the paper designated in the notice. (Derived from Town & Country House & Home Service, Inc. v. Newbery (n.d.).)