True v. Sibley

29 N.Y.S. 704

• Court: The Superior Court of the City of New York and Buffalo
• Decided: June 11, 1894
• Status: Published

Opinion

PER CURIAM.

The application fails to show that the case on appeal, which confessedly was served, has been settled and ordered on file by order of the judge who tried the cause, or that the case has been declared abandoned for failure of the appellant to procure its settlement or filing. The order obtained by the respondent at special term, declaring the appeal abandoned for nonservice of the printed papers on the appeal within the proper time, is wholly irregular. It is, in effect, an order dismissing the entire appeal. The general term is the proper tribunal to make such an order. If the- respondent had grounds which have not been disclosed for procuring an order declaring the case on appeal abandoned, he should have made the proper application and obtained the appropriate order. This would have left the appellant still at liberty to prosecute his appeal upon the judgment roll alone; and, if thereupon he had failed to serve within the time prescribed the printed papers necessary for the prosecution of the last-named appeal, the respondent might have moved at general term to have the cause stricken from the calendar, and for judgment. Upon the papers submitted, the motion, as made, must be denied, with $10 costs.