Robinson v. Hudson River Railroad ( 1856 )

Brady, J.

The plaintiff had notice on June 24, 1854, that judgment had been entered against him, and no appeal was taken within the time limited by statute. The stay given by defendant’s attorney was not a perpetual stay, and expired when the case was finally disposed of. The amendments were served on February 4, 1853, and the notice of settlement served on February 11, 1853. The amendments, by Rule 16 of the Supreme Court, were agreed to, the notice of settlement not having been served within four days after the service of amendments. (Rule 15.) Notice of settlement was therefore unnecessary, the case having been settled by operation of the rule just referred to. Rule 17 requires the party making the case to procure the same to be filed within ten days after it shall be settled, and although where a party has regularly served notice of appeal, his omission to file a case or exceptions confers no right on the opposite party to have his appeal dismissed, (Brown v. Harock, 9 How. Pr. R., 345), yet it operates as a final disposition of the case or bill of exceptions, and leaves the party to argue his appeal, on the judgment record alone. The stay given by the defendants expired when the case was disposed of, and as we have seen, the case was disposed of by force of Rules 16 and 17 of the Supreme Court referred to, long prior to the entry of judgment.

The appellant, in answer to this, urges that the case and amendments were, at the time designated for that purpose, handed to Judge Woodruff, or some person at the chambers of this court, to be given to the court, and that after repeated efforts to obtain them, application was made for leave to settle the case as made by the plaintiff, which 'was not granted. From the order denying the motion and that application, the appeal is taken.

As appears already, the notice of judgment was given on June 24, 1854, and the application for relief under the circumstances was not made until December, 1855. The papers never reached Judge Woodruff, who presided at the trial, and after the laches of the plaintiff, extending over a period of nearly a year and a half after notice of the judgment, Judge Woodruff properly and justly refused to permit a settlement of the case. The delay itself was a complete answer to the favor asked, without reference to the fact that if the case were settled, no appeal having been taken within the thirty days allowed by the Code, such settlement would be of no utility.

The defendant is not responsible for the dilemma in which the plaintiff is placed, and is not by any rule required to waive his rights finally acquired. For these reasons, the appeal from the order at special term, made by Judge Woodruff, must be affirmed.