
    Michael J. Drummond, Commissioner of Public Charities of the City of New York, on Complaint of Annie Slesok, Respondent, v. Charles Siano, Appellant.
    First Department,
    November 28, 1913.
    Appeal from Court of Special Sessions—correction of record — facts happening subsequent to appeal.
    Where a return on an appeal from a decision of the Court of Special Sessions in bastardy proceedings has been filed in the Appellate Division, it is for the latter court to correct the record if it be improper, and an order of the Court of Special Sessions assuming to correct the record is ineffective for any purpose.
    The appeal must be heard on the record as it exists at the time the appeal was taken, and if subsequent to the appeal a fact appears which may be a ground for dismissal, the plaintiff must submit an affidavit to the Appellate Division setting forth that fact.
    Motion to return record to Court of Special Sessions for correction.
    
      Herman Stiefel, for the motion.
    
      Achille J. Oishei, opposed.
   Per Curiam:

The defendant was tried May 8, 1913, before the Court of Special Sessions on the charge of being the father of a bastard child, and was thereupon adjudged to be the father of the child, and ordered and required to pay $2 a week toward the support and maintenance of the said child and to give a bond in the sum of $200, and in default thereof the defendant was committed to the city prison. On May 12, 1913, the defendant appealed to this court from that judgment.

That appeal was made up of the record as it then appeared and certified by the clerk and filed in this court. Subsequently it appeared that defendant or some one in his behalf had deposited $200 to secure the defendant’s liberation, and a motion was made at the Court of Special Sessions to correct the case on appeal by inserting therein that fact. The Court of Special Sessions assumed to correct the record in this court, and directed the return of the original record filed here to have statement of that fact inserted in the record.

After a return is filed in this court it is for this court to correct the record if it is improper, and the order of the Court of Special Sessions assuming to correct the record is ineffective for any purpose.

The question is, whether a fact appearing subsequent to the taking of the appeal shall appear as part of the record on which the case is to be heard in this court. We think the case is to be heard here upon the record as it existed at the time the appeal was taken, and if plaintiff wants to have the appeal dismissed for any reason appearing outside of the record or after the appeal was taken, the proper practice is for him to submit an affidavit setting forth that fact. As the record appears to be a correct record of the trial and the judgment at the time the appeal was taken, it would be impossible to insert in it the statement as to anything that was done after the appeal was taken. This motion must be denied.

Present — Ingraham, P. J., Clarke, Scott, Dowling and Hotchkiss, JJ.

Motion denied. Order to be settled on notice.  