E. P. Reynolds, Inc. v. Nager Elec. Co.

• Decision Date: 01 June 1964
• Citation: 250 N.Y.S.2d 487,21 A.D.2d 306
• Parties: E. P. REYNOLDS, INC., Plaintiff-Respondent, v. NAGER ELECTRIC COMPANY, Inc., Defendant-Appellant and Third-Party Plaintiff-Appellant; MASSACHUSETTS BONDING & INSURANCE COMPANY, Third-Party Defendant-Respondent (and another third-party action).
• Court: New York Supreme Court — Appellate Division

Page 487

250 N.Y.S.2d 487

21 A.D.2d 306

E. P. REYNOLDS, INC., Plaintiff-Respondent, v. NAGER ELECTRIC COMPANY, Inc., Defendant-Appellant and Third-Party Plaintiff-Appellant; MASSACHUSETTS

BONDING & INSURANCE COMPANY, Third-Party

Defendant-Respondent (and

another third-party action).

Supreme Court, Appellate Division, Second Department.

June 1, 1964.

M. Carl Levine, Morgulas & Foreman, New York City, for appellant; Albert Foreman and Jerrold Morgulas, New York City, of counsel.

Albert J. Klein and Bader & Belson, New York City, for respondent; A. J. Klein, New York City, of counsel.

Before BELDOCK, P. J., and BRENNAN, HILL, RABIN and HOPKINS, JJ.

PER CURIAM.

This is an action to recover damages sustained by the plaintiff, E. P. Reynolds, Inc., as a result of fraudulent representations claimed to have been made by the defendant, Nager Electric Co., Inc., to induce Reynolds to enter into a contract with Nager for excavation work in connection with the installation by Nager of a lighting system at the Rockland State Hospital in Orangeburg, New York.

The appeal is by Nager from so much of a judgment, entered on a jury's verdict after a seven day trial, as is in favor of Reynolds against Nager and as disallows Nager's counterclaim against Reynolds and its cross claim against Massachusetts Bonding & Insurance Company, the surety on Reynolds' performance bond whom Nager had impleaded.

Nager urges in substance that the weight of the evidence did not support a finding that it had made fraudulent representations to Reynolds; that Reynolds as a matter of law was barred from claiming misrepresentations by Nager; and that the dismissal of its third-party claim against Reynolds' surety on the performance bond was improper.

Those contentions are advanced on an appendix containing 13 pages of excerpts of the testimony culled from a stenographic transcript of over 950 pages. While the appendix method of presenting an appeal is designed to eliminate, in a proper case, the necessity of reproducing the entire record on appeal, the statute (CPLR Rule 5528, subd. [a], subpar. 5) nevertheless requires that an appellant submit an appendix containing 'such parts of the record on appeal as are necessary to consider the questions involved, including those parts the appellant reasonably assumes will be relied upon by the respondent.' The fact that the respondent may also submit an appendix containing 'only such additional parts of the record as are necessary to consider the questions involved' (CPLR Rule 5528, subd. [b]) does not relieve the appellant of the primary burden of presenting an appendix which complies with the requirements of paragraph 5 of subdivision (a) of rule 5528 (cf. Haddad v. Border Express, 1 Cir., 303 F.2d 134, 136).

The appendix here is obviously insufficient to permit of a determination of the questions involved. It is clearly impossible to review the weight of the evidence without an examination of all the pertinent proof; and appellant's appendix is completely wanting in that regard. It is also impossible...