Skinner v. Allison

124 A.D. 541, 108 N.Y.S. 970, 1908 N.Y. App. Div. LEXIS 2143

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 1908
• Status: Published

Opinion

Rich, J.:

Under the rule heretofore followed by this court we must decline to to consider this appeal upon the merits for the reason that the requirements of sections. 317 and 318 of «the Municipal Court Act (Laws of 1902, chap. 580) have not been complied with. There is presented to us an envelope containing a return of the clerk reciting, among other things: .u The evidence given on said trial is as follows: * . * * ¡Neither party offered any further evidence, and the foregoing is substantially all the evidence given on the trial of said action.” Tlie space between these two quotations is entirely blank, and'no ev'i- • deuce is included in or attached to the return. The return recites that the pleadings were verified. This is necessarily an assertion that they were in writing. There are no written pleadings annexed to or contained in the. return or in the envelope containing, the papers in the action, and counsel for the appellant asserts that the pleadings were oral. Included among the papers, but attached to none of them, is what purports to be a copy of the stenographer’s minutes of the trial. There, is nothing showing a settlement of the case and exceptions'as required by section 318. It .has-become a common practice in the Municipal Court for attorneys, clerks and the justices thereof to ignore, to a greater or lesser extent, the requirements of the statute referred to. A large number of detached papers are usually placed in an envelope and sent to this, court as a record, and' this practice lias become so general that we must decline to consider appeals upon the merits in which the plain requirements of sections 317 and 318 áre ignored. These sections contemplate a case'and exceptions, préparéd, noticed and sóttled as in the Supreme Court, containing the pleadings, proceedings, evidence and judgment, attached together and ' certified. by the trial justice-as having been settled by him, as follows: “ The.clerk of the court ' * * * must within thirty days from the servicé of the notice of appeal and the payment of the costs and fees as prescribed in this act,, make a return to the áppel'late court, annex, thereto the notice of appeal and the undertaking, if any has. been delivered-to him, and cause the same to be filed with the clerk of the appellate court. The return must contain all the: proceedings, including the evidence and the ■ judgment. The stenographer’s minutes of the evidence must be furnished to the clerk, by the. stenographer, within ten days after the fees therefor have been paid. * * * Immediately upon receiving the minutes from the stenographer, * * * the cleric of the court shall cause notice of 'that fact to be sent to the attorney for the appellant, or to the appellant if he has not appeared by attorney. The appellant or his attorney shall then procure the case to be settled on a written notice of at least three days, * * * máde returnable before the justice who tried the case, in the court house in the district in which said justice may then be sitting. Said justice shall thereupon, within five days, settle the case or exceptions upon it, if there be any, and indorse the return, as provided in the next preceding section. * * * ” If Municipal Court justices, clerks and attorneys for the parties will persist, after repeated warnings, in ignoring the plain requirements of the statute, it must hereafter be with the knowledge that appeals so presented will not be considered by this court upon their merits, but dismissed.

Jenks, Hooker, Gaynor and Miller, JJ., concurred.

Appeal dismissed, with costs.