Odendall v. Haebler — 91 A.D. 372

Majority

p. 372

Anton Odendall, Respondent, v. Theodore Haebler and Oscar Faehrmann, Appellants.

Headnote

Piling printed papers on appeal with the clerk of the Appellate 'Division — section ' 1353 of the Code of Giril Procedure applies to appeals from orders as well as to those from judgments.

Section 1353 of the Code of Civil Procedure, which provides that, before an appeal based upon a case can be heard in the Appellate Division, the judge trying the case shall order the printed papers to be filed with the clerk of the Appellate Division, applies to all appeals founded upon a case prepared and settled, notwithstanding that the language of the last clause of the section refers strictly to appeals from judgments only.

Motion by the defendants, Theodore Haebler and another, for an order directing, the clerk of the Appellate Division in the first department to file the casé on. appeal herein, the said clerk having

p. 373

refused to file the same because it did not contain an order of the trial judge directing the case to be filed.

Robert B. Honeyman, for the motion.

It was the plain intention of section 1353 of the Code to require, where an appeal is based upon a case, that before the appeal can be heard in the Appellate Division, the judge trying the case should order the printed papers on file. It is true that the language of the last clause of the section ref ers strictly tocases of appeals from judgments only; but in view of the general character of the legislation, and of the fact that all the reasons which suggest the propriety of the judge directing the filing of the printed papers in the case of an appeal from a judgment, apply with equal force to all the instances in which the appeal is founded upon a case prepared and settled, it is evident that the intention was that in all such cases the judge who tried the case should direct the printed papers to be filed with the clerk of the Appellate Division.

The motion should, therefore, be denied.

Present — Van Brunt, P. J., Patterson, O’Brien, McLaughlin and Laughlin, JJ.

Motion denied.