Opinion
July 6, 1967
Appeal from an order of the Supreme Court at Special Term which denied plaintiffs' motion for an order settling the record on appeal or for alternative relief. Pursuant to CPLR 3211 (subd. [a], par. 8), defendants moved to dismiss the action upon the ground that the court does not have jurisdiction of the person of either defendant in that neither was served with a copy of the summons. The motion was thereupon referred to a later Special Term for trial of the issue of service. Plaintiffs appealed from that order and with their proposed papers on appeal included defendants' demand for complaint, defendants' answer, which asserted no objection to jurisdiction, and defendants' amended answer, which pleaded as an affirmative defense, lack of jurisdiction, in that neither of the defendants was served with a copy of the summons. Respondents' attorneys declined to stipulate the record on appeal thus constituted, asserting that the pleadings were not before the court upon the motion. Appellants moved at Special Term for alternative relief (1) that the court grant reargument of the defendants' motion to dismiss, so that the court might consider the pleadings or (2) that the order of reference be resettled to include a reference to the pleadings or (3) that the court settle the record on appeal. In its decision denying the motion, Special Term said that "the pleadings were not submitted with the original motion." The decision ignores the third alternative demand, that seeking settlement of the record on appeal, and no basis appears for Special Term's denial of the clear legal right, possessed by every appellant, to a settlement of the record; which Special Term should, of course, have settled in one form or the other, to enable the appeal to proceed or to permit an appeal to the Appellate Division from the order of settlement. (CPLR 5525, subd. [c]; Rules of App. Div., 3d Dept., rule 2, subd. e.) In the interest of expedition and to avoid further unnecessary and untoward delay, it seems to us appropriate to note that the purported copy of the answering affidavit of July 27, 1966 appearing in the proposed record on appeal refers specifically to the contents of defendants' answer and amended answer, as each bears upon the objection to jurisdiction. Thus, these pleadings, at least, were before the court. It has long been said that pleadings are always before the court (see 2 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 2214.03, p. 22-82) and on a prior motion in this case we characterized as frivolous respondents' refusal to stipulate them; but assuming, nevertheless, that the lower court was correct in holding otherwise, it is difficult to see how the court could intelligently pass upon the motion without recourse to the answer and amended answer specifically referred to, recalling that defendants' original answer interposed no jurisdictional objection (CPLR 320, subd. [a]) and that thereafter objection was interposed by answer and by motion; and it being appellants' contention that the first objection interposed excluded the other (cf. CPLR 320, subd. [b], "by motion or in the answer"). The observations that the pleadings "were not submitted" and that it was plaintiffs' duty to supply them seem to us ill chosen. Assuming that plaintiffs' attorneys were unalert and ineffectual, it would seem nevertheless that Special Term, upon reading the answering affidavit above alluded to, would have sent for the pleadings, in the interests of a complete examination and understanding of the issues and of a correct decision. Order reversed, on the law and the facts, with costs to appellants, and motion remitted to the Special Term for settlement of the record on appeal and for such further and other action, if any, as Special Term may deem appropriate. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum Per Curiam.
"Respondents' refusal to certify the record on appeal was frivolous ( Smith v. Robilotto, 25 A.D.2d 455; Second Preliminary Report of the Advisory Committee on Practice and Procedure [1958], p. 187)." ( 26 A.D.2d 989.)