Opinion
April 5, 1962
Appeal from the Oneida Special Term.
Present — Bastow, J.P., Goldman, Halpern, McClusky and Henry, JJ.
Order insofar as appealed from unanimously reversed, with $25 costs and disbursements, and defendants' motion to dismiss the complaint granted unconditionally, with $10 costs. Memorandum: Defendants moved on September 19, 1961, to dismiss the complaint for failure to serve a copy thereof. The moving papers established that the summons was served on October 20, 1960. Notice of appearance was served on November 9, 1960. Thus on the return of the motion plaintiff had been in default in serving a complaint for nearly 11 months. No answering affidavit was served and the order granting a conditional dismissal, unless the complaint was served within 10 days after entry and service of the order, not only recites that no papers were submitted in opposition to the motion but also fails to recite that there was any appearance in opposition thereto. Upon this appeal by defendants from so much of the order as granted permission to serve the pleading plaintiff in his brief devotes several pages to a recital of facts not contained in the record. It is a fundamental rule of appellate procedure that appeals must be decided upon the contents of the record (Rules Civ. Prac., rule 234). If the record as certified by appellant does not contain all the papers used in the court below and specified in the order, the duty rested on respondent to move to correct the record. We may not consider the ex parte statements contained in respondent's brief or the several exhibits mailed to the Clerk of this court. Upon the record before us, so much of the order of Special Term as granted plaintiff leave to serve the complaint was an improvident exercise of discretion.