Brady v. Powers

105 A.D. 476, 94 N.Y.S. 259

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1905
• Status: Published

Opinion

Per Curiam :

An examination of the files of the New JTorTc La/w Journal will show that during the year 1891 the following rule was published under the heading “ Supreme Court, General Term: ”

“ The general rules of practice contemplating that when a case is settled it shall be annexed to the Judgment Roll, and the Judgment Roll, with the case annexed, being the papers upon which appeals from judgments shall be heard by the General Term, the clerk of the General Term has been instructed by the Court to refuse to receive or to file printed papers upon appeal unless the same are printed in the order above mentioned.” (See 1ST. Y. L. J., Feb. 13, 1891.)

Subsequently this provision was added to rule 41 of the General Rules of Practice. Upon an examination thereof it will be noticed that in making up the record the rule requires that the papers shall consist of the notice of appeal and a copy of the judgment roll, and that “ to these papers shall be attached the case or case and exceptions.” The uniform construction given to this language for fifteen years has been to require the clerk before receiving a record upon appeal to examine it in order to see whether it was made up in accordance with the provision requiring that the judgment roll should immediately follow the notice of appeal, and that to "these papers should be attached the case or case and exceptions.

As the order observed in the printing of this record does not follow that rule, the motion to have the clerk receive and file the same is denied.

Present — O’Brien, P. J., Patterson, Ingraham, McLaughlin and Laughlin, JJ.

Motion denied.