Oeters v. Groupe

15 Abb. Pr. 263

Opinion

By the Court.

*—Bosworth, Ch. J. (orally).

In this case a judgment of affirmance was taken by default, which the appellant moves to set aside as irregular, on the ground that no case had been prepared or served, and that, therefore, the appeal was not ready for any decision. In support of this view he cites Rule 42 of the Supreme Court, allowing the respondent, in such case, to move for a dismissal of the appeal. This remedy is not, we think, exclusive. The appellant alone was in fault for not having prepared the papers, and we think that ■the respondent was entitled to disregard the fact, and, upon the-appellant’s default, to take a j udgment of affirmance.

Motion denied, with $5 costs, and with liberty to renew on other grounds.

Present, Bosworth, Ch. J., Moncrief, Robertson, White, Barbour, and Monell, JJ.