Mahon v. Mahon — 64 A.D. 262

Majority

p. 262

Rebecca L. F. Mahon, Appellant, v. William A. Mahon, Respondent.

Headnote

Appeal—dismissed on motion, in case of a failure to serve a proposed case — the respondent may not put the case on the calenda,r and have the action dismissed with full costs.

Upon the hearing of a motion to dismiss.an appeal'on the ground that the appellant had failed to serve the proposed case, the Appellate Division made an order providing : “It is hereby ordered, that the motion to dismiss said appeal be and the same is hereby granted unless the said appellant shall file and serve her printed case on appeal herein and cause the said appeal to be placed at the foot of the calendar, for the May term of this court for argument.’’ The appellant thereafter determined not to prosecute the appeal and, therefore, failed to make a case or place the appeal on the calendar. The respondent, however, had the case placed upon the calendar and when it was reached entered a judgment of affirmance upon default, and taxed a full bill of costs.

Held, that the order made upon the hearing of the motion operated ás a dismissal of the appeal, without any further action of the court, in the event of the appellant’s failure to-comply with the conditions specified therein;

That the action of the respondent was improper and that the appellant was entitled to have the judgment for costs entered upon the affirmance vacated and also to have the appeal finally dismissed.

Motion by the plaintiff, Rebecca L. F. Mahon, to vacate, a judgment for costs in favor of the defendant entered upon the affirmance of a judgment on an appeal taken by the plaintiff.

Hughes & Heistad, for the appellant.

M. Charles Foley, for the respondent.

The motion to dismiss the appeal on the ground that the appellant had failed to serve the proposed case was granted by this court by an order made May 27, 1901, the material part of which is as follows : “ It is hereby ordered, that the motion to dismiss said appeal be and the same is hereby granted unless the said appellant shall file and serve her printed case on appeal herein and cause the said appeal to be placed at the foot of the calendar for the May term of this court for argument.” It appears that the appellant determined thereafter not to prosecute the appeal, and, therefore, failed to make a case or place the appeal on the calendar. Nevertheless, the attorneys for the respondent had the case placed on the calendar at the foot, and when it was reached entered judgment for affirmance upon default, taxing' a full bill of costs amounting to sixty-two dollars and twenty-five cents.

The contention upon this motion is that this action of the respondent was improper, inasmuch as the order of May 27, 1901, practically operated as a dismissal of the appeal without any further action of this court in the event of the appellant’s failure to comply with the conditions specified therein ; that is to say, the service of the case and the placing of the appeal upon the calendar.

We think this view is correct. The appellant was entitled to abandon the appeal if she.saw fit, and suffer the costs of the dismissal which this court had ordered, but there is no good reason why she should be mulcted further in costs by the entry of an unnecessary judgment.

The motion to vacate the judgment should be granted, without costs, and to remove all possible doubt as to the status of the case, the order should provide that the appeal be and the same is hereby finally dismissed, with ten dollars costs.

Present — Goodrich, P. J., Bartlett, Woodward, Hirschberg and Jenks, JJ.

All concurred.

Motion to vacate judgment granted, without costs.