Tyng v. Marsh , 10 Jones & S. 235 ( 1877 )

By the Court.—Curtis, Ch. J.

Previous to the making of the order appealed'from, the plaintiff was by order required to file Ms case as settled, within a certain time,‘or that it should be deemed abandoned. The order also required that he should procure the case as settled to be engrossed or printed.

„The plaintiff has printed, filed and served a case, in which he has omitted to insert certain exhibits that were in the case as settled, and which is in other respects a departure from the case as settled.

The defendants charge that the omitted exhibits are documents made by the plaintiff, and are material in the action, both as contradicting the plaintiff’s oral testimony, and on the general questions of the case, and that they were offered in evidence by the defendants, and they aver, that they believe such omission was intentional on his part.

The plaintiff responds to this, by saying that he understood that the exhibits which were not printed in the case were omitted in accordance with the defendants’ stipulation. If the plaintiff thus misunderstood this stipulation and was misled, he should have •applied without delay by motion to the court for relief, ■and for leave to correct the case as printed, served and filed.

The chief point that the plaintiff urges is, that the special term had no power to declare the case and exceptions abandoned, or to order the printed case off the file.

The rules of the courts seek to have cases and exceptions settled and definitely determined, as to their form and contents, before coming before the appellate courts for consideration, and also to give all parties an opportunity to have the questions brought up fairly and accurately for review. If a party appellant chooses to print, file and serve a case, that is not the case as settled, it is obvious that a wrong is committed. It is a necessary incident to the administration of justice, that a court should have control over its files, so far as to- prevent their use thus wrongfully, and as is here claimed in bad faith, to prejudice a party in a suit.

The order that the case and exceptions be deemed abandoned is in conformity with the 44th rule. The authority and force of these rules in governing matters before the courts was provided for in section 470 of the Code, and in section 13, chapter 408, of the Laws of 1870. Where the statutes or their rules do not cover a case, the courts follow the rules of the king’s bench. (Dubois v. Philips, 5 Johns. 235; Rule 97). The order appealed from gives effect to the order of March 29, 1876, which, not having been complied with, or appealed from, became operative upon such non-compliance.

The papers on the appeal do not sustain the claim of the appellant, that the defendants’ objections are technical and unsubstantial, or that he offered to remedy the discrepancy between the printed case and the case as settled at any time before the defendants made this motion.

The order appealed from should be affirmed with costs.

Sanford, J., concurred.