Sacks v. Hookey

55 Misc. 198, 105 N.Y.S. 235

Opinion

Gildersleeve, J.

The appeal herein having been reached for argument, the respondent raises the point that the printed case has never been settled or signed by the justice before whom the action was tried. An examination of the record shows this to be true. “A case on appeal must be ‘ settled and signed ’ by the trial judge. A stipulation that it is a copy of the record filed does not cure the defect. The certificate must state that the case contains all the evidence.” Code Civ. Pro., § 997; Gregory v. Clark, 53 App. Div. 74. The case must, therefore, be sent to the lower court for amendment. Brush v. Blot, 11 App. Div. 626.

Judgment will be affirmed, with costs, unless the appellant causes the return to be settled and signed within thirty days; or, if the same has been settled and signed, unless he causes the record to be amended so as to show that fact, and pays ten dollars costs and disbursements on this appeal.

Seabury and Platzek, JJ., concur.

Judgment affirmed, with costs, unless appellant causes return to be settled and signed within thirty days; or, if same has been settled, unless he causes record to be amended so as to show that fact, and pay ten dollars costs and disbursements on this appeal.