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Wright v. Mayor

14 Daly (N.Y.) 349 Court N.Y.C.P. Decision date 1887-12-05 English

Delivered by Per Curiam. — [Present, Larremore, Ch. J., Daly and Van Hoesen, JJ.] —

Contents

Majority

p. 349
Finley S. Wright, Plaintiff, against The Mayor, Aldermen, and Commonalty of the City of New York, Defendants.
(Decided December 5th, 1887.)

Headnote

Where exceptions taken at the trial of a cause are ordered to be heard at the General Term, it is the duty of the party taking the exceptions to prepare the case and to serve on the opposite party copies of the papers in accordance with rule 40 of the General Rules of Practice.
Motion to dismiss exceptions taken at a Trial Term of this court and ordered to be heard at the General Term.
p. 350
At the trial of the action the complaint was dismissed, and plaintiff’s exceptions were ordered to be heard in the first instance at the General Term. The case was settled, but was not printed by plaintiff. Defendant moved at the General Term to dismiss the exceptions on the grounds that plaintiff had not served printed copies of the papers and had unreasonably neglected to bring the exceptions to a hearing.
Morgan J. O'Brien, for the motion.
Elliot Sandford, opposed.

It was the duty of the party who excepted to the ruling of the court to bring that ruling before the General Term for review. “The exceptions must be heard upon a motion for a new trial, which must be decided by the General Term ” (Code Civ. Pro. § 1000). The plaintiff ought to have prepared the case, as he excepted to the ruling that dismissed the complaint. He has failed to prepare the case, and he must be deemed to have waived his right to prepare one (rule 33).

The respondent was regular in noticing the exceptions for hearing at the General Term (§TOOO). As it was the duty of the plaintiff to prepare the papers on appeal, so also was it his duty to serve a copy of the appeal papers on the defendant and respondent (rule 40), eight days before the time at which the matter was noticed for argument. On his failure to do so, his adversary was at liberty to move, on four days’ notice, that the cause be struck from the calendar, and that judgment be rendered in his favor (rule 40). The motion of respondent must be granted.

Cause stricken from calendar, and judgment for defendant.