Nelsen v. Rampone

• Citation: 32 A.D.2d 965,303 N.Y.S.2d 18
• Parties: Lillian NELSEN et al., Appellants, v. Charles R. RAMPONE et al., Respondents.
• Decision Date: 14 July 1969
• Court: New York Supreme Court Appellate Division

Page 18

303 N.Y.S.2d 18

32 A.D.2d 965

Lillian NELSEN et al., Appellants, v. Charles R. RAMPONE et al., Respondents.

Supreme Court, Appellate Division, Second Department.

July 14, 1969.

John O. Hughes, Smithtown, for plaintiffs-appellants.

Boylan & Berger, Port Jefferson, for defendants-respondents.

Before HOPKINS, Acting P.J., and BENJAMIN, MUNDER, MARTUSCELLO and KLEINFELD, JJ.

MEMORANDUM BY THE COURT.

Appeal by plaintiffs from a judgment of the Supreme Court, Suffolk County, entered May 4, 1967 after a nonjury trial, upon the trial court's (1) dismissal of the complaint, which alleged false arrest, false imprisonment and malicious prosecution, and (2) award to defendants of $1,525 upon a counterclaim. Appeal dismissed, with costs.

By order dated March 3, 1969 this court dismissed the appeal unless the appellants would file and serve a proper appendix within 30 days after entry of that order (Nelsen v. Rampone, 31 A.D.2d 933, 299 N.Y.S.2d 18). Appellants have submitted a supplemental appendix which is patently insufficient to determine the issues raised. The appendix contains only excerpts of the testimony of plaintiffs' witnesses and part of the cross-examination of defendant Charles Rampone. Plaintiffs' principal contention is that the trial court erred in finding against them on the merits. 'An appellate court cannot review the weight of the evidence without an examination of all the pertinent proof. Plaintiff was afforded an opportunity to remedy the defect but her 'supplemental appendix' remains wanting in that regard' (Melville v. Melville, 29 A.D.2d 970, 289 N.Y.S.2d 416; see, also, E. P. Reynolds, Inc. v. Nager Elec. Co., 17 N.Y.2d 51, 268 N.Y.S.2d 15, 215 N.E.2d 339).

Because of circumstances unique to this appeal, we have examined the full trial record and were we not dismissing the appeal we would affirm on the merits.