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WINSTON C. BECANNON v. VINCENT P. SMITH (02/03/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


February 3, 1969

WINSTON C. BECANNON, AS EXECUTOR OF FRANK HARTL, DECEASED, RESPONDENT,
v.
VINCENT P. SMITH, APPELLANT, ET AL., DEFENDANTS

Appeal by defendant Smith from a judgment of the Supreme Court, Westchester County, dated July 17, 1967, in favor of plaintiff. The appeal has brought up for review the portion of the order of said court dated July 12, 1967 which, on plaintiff's motion, struck out appellant's answer.

Christ, Acting P. J., Brennan, Benjamin, Munder and Martuscello, JJ., concur.

Judgment reversed and order reversed insofar as appealed from, on the law and the facts, with $50 costs and disbursements to plaintiff; and plaintiff's motion to strike out appellant's answer denied, on condition that appellant (a) give an undertaking of $10,000, with corporate surety, within 20 days after entry of the order hereon, that he will pay any judgment which plaintiff may procure against him in this action; (b) will submit to examination and produce books and papers, in accordance with the order dated March 10, 1967, at a time set forth in a written notice of not less than 10 days, to be given by plaintiff; and (c) pay the costs and disbursements of this appeal within 10 days after service of a copy of the bill of costs, as taxed, with notice of the taxation. Under all the circumstances, in our opinion the interests of justice require that appellant have his day in court upon compliance with the terms and conditions above set forth. The court notes that the record submitted on this appeal contained numerous errors, was in many respects incomplete, and that its contents were arranged without chronological or logical sequence, so that the court had the burdensome task of untangling and mastering the facts necessary to a fair consideration of the appeal. Such practice is a violation of the rules and an imposition on the court (cf. Lo Gerfo v. Lo Gerfo, 30 A.D.2d 156).

19690203

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