Argued April 26, 1956
Decided June 7, 1956
Appeal from the Appellate Division of the Supreme Court in the first judicial department, OWEN McGIVERN, J.
E.F.W. Wildermuth and Michael F. Horgan for appellant.
Abraham Wilson for respondent.
Order affirmed on the opinion below, without costs. In affirming, we do not pass upon the merits of the substantive controversy between the parties. The motion of petitioner, made upon the argument, "to strike and expunge" certain papers enumerated in his notice of motion is denied. Interpreting the motion as one to deny consideration of those papers ( Brown v. University of State of N.Y., 265 N.Y. 290), we have disregarded all of them other than the stenographer's minutes, except as they may otherwise be reflected in the settled record.
As to the minutes, aside from the fact that they were concededly before the Appellate Division and are a part of the record in the Westchester County proceeding, we have considered them under the well-settled rule that undisputed record evidence outside the settled record on an appeal may be resorted to to sustain a determination ( Stemmler v. Mayor of New York, 179 N.Y. 473, 482; Cohen and Karger, Powers of the New York Court of Appeals, p. 640).
CONWAY, Ch. J., DESMOND, DYE, FULD, FROESSEL, VAN VOORHIS and BURKE, JJ., concur.