Bonneford v. De Russy , 73 Hun 377 ( 1893 )

MERWIN, J.

The papers in this case include what purport to be a case and exceptions. There is, however, nothing to show that the case and exceptions were ever settled by the referee, as required by section 997 of the Code, or ordered to be filed, as required by rule 35. There is a stipulation over the names of the attorneys for the respective parties stating that “certification of the above and foregoing case and exceptions is hereby waived, and it is consented that the same be filed.” This does not cure. the defect. The provision that the casé should be settled by the judge or referee who tried the cause is a wholesome one, (Reese v. Boese, 92 N. Y. 632,) and should be enforced, (Dwight v. Railroad Co., [Sup.] 8 N. Y. Supp. 789; McNish v. Bowers, 30 Hun, 214.) Nor is there any certificate of the clerk, under section 1353 of the Code, nor any stipulation of the attorneys, under section 3301 as amended in 1882 and 1890. The case should be sent back for settlement and certification. All concur.