Brush v. Blot.

Appellate Division of the Supreme Court of New York

Brush v. Blot.

42 N.Y.S. 761, 11 A.D. 626

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 30, 1896

StatusPublished

Cited by2 cases

This text of 42 N.Y.S. 761 (Brush v. Blot.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brush v. Blot., 42 N.Y.S. 761, 11 A.D. 626 (N.Y. Ct. App. 1896).

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Opinion

CULLEN, J.

Rule 35, General Rules of Practice, requires the appellant’s attorney to procure the case as settled to be signed by the judge; otherwise, the case is to be deemed abandoned. The [762]*762record before us does not show that the case was ever settled or signed by the trial judge. As the respondent raises the objection, we are of opinion that the case cannot be considered on this appeal. But we think that the appeal cannot be dismissed for this reason, as intimated in Rothschild v. Railroad Co., 9 App. Div. 406, 41 N. Y. Supp. 293, for the appellant may appeal on the judgment roll alone, and, if any fatal error appears on that record, he would be entitled to a reversal of the judgment appealed from. No error appears on the face of the judgment roll before us, and it follows that,- should we now decide this appeal, the judgment must be affirmed. But it is plain from the brief and argument that the appellant relies solely on errors claimed to have been committed on the trial, and it may be that the case has been settled and signed, and the only defect is the failure of the record to show such fact. We think, therefore, that the appellant should have an opportunity to correct his error.

The judgment must be affirmed, with costs, unless within 30 days the appellant causes the case to be signed and settled; or, if such has been done, he cause the record to be amended so as to show the fact, and he pay the respondent $10 costs and disbursements of this appeal, in which case the cause may be reargued or submitted. All concur.

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CULLEN, J.

Rule 35, General Rules of Practice, requires the appellant’s attorney to procure the case as settled to be signed by the judge; otherwise, the case is to be deemed abandoned. The [762]*762record before us does not show that the case was ever settled or signed by the trial judge. As the respondent raises the objection, we are of opinion that the case cannot be considered on this appeal. But we think that the appeal cannot be dismissed for this reason, as intimated in Rothschild v. Railroad Co., 9 App. Div. 406, 41 N. Y. Supp. 293, for the appellant may appeal on the judgment roll alone, and, if any fatal error appears on that record, he would be entitled to a reversal of the judgment appealed from. No error appears on the face of the judgment roll before us, and it follows that,- should we now decide this appeal, the judgment must be affirmed. But it is plain from the brief and argument that the appellant relies solely on errors claimed to have been committed on the trial, and it may be that the case has been settled and signed, and the only defect is the failure of the record to show such fact. We think, therefore, that the appellant should have an opportunity to correct his error.

The judgment must be affirmed, with costs, unless within 30 days the appellant causes the case to be signed and settled; or, if such has been done, he cause the record to be amended so as to show the fact, and he pay the respondent $10 costs and disbursements of this appeal, in which case the cause may be reargued or submitted. All concur.

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42 N.Y.S. 761, 11 A.D. 626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brush-v-blot-nyappdiv-1896.

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