Carr v. Butler

Gilbersleeve, J.

The defendants move to resettle the case on appeal herein by allowing portions of the exhibits to be printed instead of all of such exhibits. The plaintiff objects on the ground that the defendants’ appeal must be deemed abandoned, for the reason that they did not have the case on appeal filed within ten days after it had been settled. Rule 35 of the General Rules of Practice reads as follows, viz.: “ When a party makes a case, or a case and exceptions, he shall procure the same to be signed by "the judge or referee and filed, within ten days after it shall have been settled, or it shall be deemed abandoned, unless the time is extended by order.” In the ease at bar the case was settled on October 10, 1900, and handed down to the clerk of Part VII, Trial Term, of this court, who caused an announcement of such settlement to appear in the Law Journal of October 11, 1900. The defendants, however, failed to comply with the requirements of rule 35, and ten days elapsed without the filing of the said case on appeal. On or about October 25, 1900, defendants served notice of the motion to resettle. I do not see how they can prevail on such a motion under the facts above narrated. As we have seen, where an attorney has made a case on appeal, his failure to have it signed by the judge and filed, within ten days after it has been settled, operates as an abandonment of the case, unless the time is extended by order. Mo such order was here obtained. The proper course of a party who is thus in default is to move to have his default opened, after which, if his application is granted, he will he in a position to have his case filed regularly. Rothschild v. Rio Grande W. R. Co., 9 App. Div. 406. Motion denied, but without costs.

Motion denied, without costs.