Kramer v. Thorne , 97 Misc. 604 ( 1916 )

Per Curiam.

The respondent has moved to dismiss the appeal herein on the ground that it is frivolous and taken in bad faith. The appeal was taken on October 27, 1916, and the return has not yet been filed. This court can further dismiss the appeal upon the ground that the appellant has been guilty of laches in failing to file the return. The respondent’s attorney states in his moving papers that when the verdict of the jury was rendered in favor of his client he ‘1 agreed ’ ’ with the attorney for the appellant that he would consent that the verdict be set aside and a new trial ordered and that counsel for the appellant stated that he would confer with the attorney of record regarding this disposition of the case. Not hearing from the latter, on October 28, 1916, the day after the appeal was taken, he wrote the attorney again agreeing to sign a stipulation setting aside the verdict. He has also now filed •with this court a written stipulation to that effect. Under the old Municipal Court Act, section 325, a respondent could consent to a reversal of a judgment if his offer was made within twenty days after service of a notice of appeal. This provision has, however, not been carried into the new Muncipal Court Code. Inasmuch as the respondent is willing to afford the appellant all the relief that he would be entitled to after a hearing of the appeal, the issues in the case being merely questions of fact, there seems no good reason for taking up the further time of the court. Unless, therefore, the appellant will file a stipulation in accordance with that filed by the respondent within five days after entry and notice thereof of this order the appeal will be dismissed.

Present: Guy, Bijur and Shearn, JJ.

Appeal dismissed unless appellant files stipulation within five days after entry and notice.