Acme Markets v. Tri-City Shopping Center

Motion, insofar as it seeks dismissal of appeal on the ground that the notice of appeal fails to specify the order or judgment appealed from, denied, without costs, and without prejudice to its renewal upon the argument. Motion in all other respects denied, without costs, upon condition appellant shall, on or before October 18, 1965, file and serve record, brief and notice of argument for the term commencing November 15, 1965. It does not appear from the papers before us whether the transcript of the examination before trial conducted March 25, 1965, should be included in the record on appeal (CPLR 5526), inasmuch as the judgment or order does not recite the papers used on the motion (CPLR 2219, subd. [ a ] ), the remedy under these circumstances being an application to Special Term to resettle the order. Gibson, P.J., Herlihy, Taylor, Aulisi and Hamm, JJ., concur.