People ex rel. Clark v. Flack — 15 Daly (N.Y.) 442

Majority

p. 442

The People ex rel. Marvin E. Clark, Appellants, against James A. Flack, as Sheriff of the City and County of New York, et al., Respondents.

(Decided January 13th, 1890.)

Headnote

A motion to dismiss an appeal for a failure to serve the printed papers, as required by rules of court, will be granted, where the only excuse alleged is that negotiations were pending for a settlement, and where appellant did not print his papers after notice of the motion, or come prepared to say when they could be ready for the argument, but merely alleged in his affidavit that he did not wish to undergo the expense of the appeal, if the matters in difference could be settled amicably.

Motion to -dismiss appeal.

Appellant served a notice of appeal in this action April 24th, 1889. He having failed to serve printed papers upon respondents’ attorney, notice of motion to dismiss the appeal was given January 3rd, 1890, which came on for hearing January 9th, on the affidavit of respondents’ attorney served with the notice of motion, and the affidavit of one of relator’s attorneys in opposition thereto, which latter affidavit was as follows :

“ William J. Lynch, being duly sworn, says : I am one of the attorneys for relator in this proceeding, and oppose the respondents’ motion to dismiss the appeal therein. It is true that no printed papers have been printed or served, but this is due to the fact that there have been negotiations pending for a settlement of the differences existing between the relator and his late wife, the respondent Lizzie H. Clark, and such negotiations are in fact still pending. It is the desire of deponent, as it is the attorneys, for the respondents herein, to arrange an amicable adjustment of the differences herein, if possible, and the only thing remaining to be done now is to fix on the amount. But if, for any reason, such negotiations fall through, it is the intention of the appellant to prose

p. 443

cute the appeal herein in good faith, and he desires to be accorded an opportunity to do so. I aver that there are merits in said appeal, and, in deponent’s judgment, if said appeal should be prosecuted to an argument, it would result in a reversal of the order appealed from. But deponent does not desire to undergo the expense.of said appeal if the matters in difference herein can be settled amicably.”

Wakeman Campbell, for the motion.

Wilder, Wilder Lynch, opposed.

[Present, J. F. Daly and Bischoff, JJ.] The affidavit of relator’s attorney in opposition to the motion to dismiss excuses the failure to serve printed papers on the ground of negotiations for a settlement still pending. But the notice to dismiss was served on the 3rd instant, and the relator should have printed his papers, or come prepared to say when they can be ready for the argument. He does not do this, but merely says that he does not wish to undergo the expense of the appeal if the matters in difference can be settled amicably. This wholly indefinite statement cannot be received as an answer to this motion. Whatever negotiations for settlement were pending the service of notice to dismiss ended them so far as this appeal is concerned. Without a written stipulation we cannot hold that the respondents are estopped from enforcing their rights under the rules.

Motion granted.