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HARBOR ASSOCIATES v. HYMAN ASHEROFF (12/08/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


December 8, 1969

HARBOR ASSOCIATES, INC., RESPONDENT,
v.
HYMAN ASHEROFF, APPELLANT

Appeal by defendant from so much of a judgment of the Supreme Court, Nassau County, entered December 4, 1968, as adjudged him guilty of trespass on plaintiff's land under water and awarded plaintiff $10 damages therefor, upon the trial court's finding of a statutory presumption of plaintiff's ownership of the land.

Christ, Acting P. J., Rabin, Benjamin, Martuscello and Kleinfeld, JJ., concur.

Relying upon CPLR 5525 (subd. [b]) appellant has perfected his appeal upon what was formerly known as a "bill of exceptions" and a drastically truncated appendix which contains none of the testimony adduced upon the five-day non-jury trial and only four of the numerous trial exhibits. Basically, the ruling on a question of law which he asks us to review is the trial court's denial of his motion to dismiss the complaint "for failure of proof of title." That ruling cannot adequately be reviewed by us without the complete transcript of the trial record; and it therefore is necessary for appellant to prepare and file such transcript if he wishes to prosecute the appeal and obtain such review from us (cf. Smoley v. Merrick Estates Civic Assn., 20 A.D.2d 654; Guarnacci v. Ferguson, 29 A.D.2d 839; Nelsen v. Rampone, 31 A.D.2d 933).

Disposition

 Appeal dismissed, with costs, unless within 60 days after entry of the order to be made hereon appellant shall prepare and cause to be settled and filed a transcript of the trial record, as prescribed by CPLR 5525, 5526 and the rules of this court (22 NYCRR 670.8).

19691208

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