Hillman v. De Rosa

90 N.Y.S. 409

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 10, 1904
• Status: Published

Opinion

PER CURIAM.

The record in this case comes before us with an indorsement thereon, signed by the trial judge, that the same has been “duly settled and allowed.” The appellant, however, claims that the case was filed in the office of the clerk of this court one day prior to the time for which notice of settlement thereof had been given by him,that the amendment thereto proposed by him upon the return day of his notice of settlement of the case was for that reason denied, and that such case was never settled and allowed in accordance with the provisions of section 318 of the Municipal Court act (Laws 1902, p. 1581, c. 580). Force is given to this claim by the fact that, although the return herein, signed by the clerk of the lower court, contains this statement, “Annexed hereto is the notice of appeal served upon me; also undertalcing on appeal, notice of settlement, and consent settling stenographer’s minutes,” no notice of settlement or consent settling stenographer’s minutes is attached thereto.

The record is therefore returned to the files of this court to allow the appellant to make a motion, if so desired, that the record be returned to the lower court for settlement of the case.