Robinson v. Hudson River Railroad — 1 Hilt. 144

Majority

p. 144

Henry Robinson, administrator, &c., v. The Hudson River Railroad Company.

Headnote

This cause was tried in January, 1883, and the complaint dismissed. The plaintiff, for the purpose of moving for a new trial, served a proposed case, and on the same day the defendant’s attorney entered into a stipulation, that the defendant’s proceedings should be stayed, until the case, or bill of exceptions, was settled and argued, and finally disposed of. Amendments to the case were served in due time, and seven days thereafter notice of settlement was given by the plaintiff’s attorney, and the case and amendments were subsequently left for settlement at the court-room for the judge who tried the cause. No further proceedings were taken in the cause by the plaintiff, and the case was not settled. In June, 185d=, judgment was entered for the defendant, and notice thereof in writing was ^*given to the plaintiff’s attorney. No appeal was taken from this judgment, nor ‘yyas any motion made to set it aside. In December, 1855, a motion was made by the plaintiff for the settlement of the case.. Held, that it was properly denied.

1. No appeal having bee» taken from the judgment, and the time to appeal having expired, the settlement of the case would be of no utility.

2. The delay of the plaintiff in making the application was a complete answer to it.

3. The defendant’s practice was regular. The stipulation did not operate as a perpetual stay. The notice of settlement of the case not having been served within the required time, the proposed amendments were to be deemed agreed to under Rule 15; and the case not having been filed within ten days thereafter, was to be deemed abandoned under-Rule IT and so “ finally disposed of,” within the meaning of the stipulation.

Appeal from an order made at special term denying a motion on behalf of plaintiff to settle a case. This action was tried on the 19th and 20th of January, 1853, and the complaint ivas dismissed. On the 29 th of January the plaintiff-served on the defendant a proposed case, and on the same day the defendant’s attorney gave to the plaintiff’s attorney the following consent:

(Title of the cause.) “I consent that all proceedings on the part of the defendant, in the above cause, be stayed, until the case or bill of exceptions is settled, and until tbe same is argued and finally disposed of.

(Signed) “ Thomas M. North,

“ Jan. 28, 1853. Deft’s Atty.”

p. 145

On tbe 4th of February the defendant’s attorney served his amendments to the case, and on the 11th of the same month the plaintiff’s attorney served notice of settlement. On the 15th the case and amendments were left at chambers, with some one there, for the judge who tried the cause. Thereafter, as appeared by the affidavits of the plaintiff’s attorney and his clerk, they repeatedly inquired for the case, but without success. It did not appear that the case ever reached the judge. On the 28th of June, 1854, judgment was entered for the defendant, and notice in writing was given to the plaintiff’s attorney. On the 28th of December, 1855, a motiotí was made before the judge who tried the cause for a settlement of the case. The motion was denied, and the plaintiff appealed. ^

D. JS. Wheeler, for the appellant.

Thomas M. North, for the respondent.

I. The order appealed from is not an appealable order. Code, § 819; Tollman v. Hin-man, 10 How. Pr. E. 89. II. The case has already been settled by the plaintiff’s failure to serve notice of settlement within four days after receiving the defendant’s amendments. Eule 15, Sup. Ct. Eules. III. No appeal having been taken from the judgment, and the time to appeal having expired, the settlement of the case could do no good. Even if the judgment were in violation of the stipulation and irregular, the plaintiff must move to vacate it. This he should have done long since. IY. The stipulation has nothing to do with this motion, whatever might be its effect on a motion to vacate the judgment. But, in fact, it has been strictly kept. The case having been settled on the 8th of February, 1853, by operation of the 16th rule, it should have been filed within ten days thereafter, and not having been so filed, it became, in the words of the stipulation, “ finally-disposed of,” by operation of the 17th rule.

The plaintiff had notice on the 24th of June, 1854J that judgment had been entered against him, and no appeal was

p. 146

ta.Trp.n witbin tbe time limited bj statute. The stay given by defendant’s attorney was not a perpetual stay, and expired when the case was finally disposed of. The amendments were served on 4th February, 1853, and the notice of settlement served on the 11th of February, 1853. The amendments, by rule 16 of the Supreme Court, were agreed to, the notice of settlement not having been served within four days after the service of amendments. Rule 15. Notice of settlement was therefore unneces.sary, the case having been settled by operation of the rule just referred to. The 17th rule requires the party making the case to procure the same to be filed within ten days after it shall be settled; and although, where a party has regularly served notice fzppeal, his omission to file a case or exceptions confers no uht on the opposite party to have his appeal dismissed (Brown v. Heacoke, 9 Now. Pr. R. 345), yet it operates as a final disposition of the case, or bill of exceptions, and leaves the party to argue his appeal on the judgment-record alone. The stay given by the defendants expired when the case was disposed of, and, as we have seen, the case was disposed of by force of rules 16 and ,17 of the Supreme Court, referred to, long prior to the entry of judgment. .

The appellant, in answer to this, urges that the case and amendments were, at the time designated for that purpose, handed to Judge Woodruff, or some person at the chambers of this-court, to be given to the judge; and that, after repeated efforts to obtain them, application was made for leave to settle the case as made by the plaintiff, which was not granted. From, •the order denying the motion on that application the appeal is taken.

As appears already, the notice of judgment was given on the 24th of June, 1854, and the application for relief under the circumstances was not made until December, 1855. The papers never reached Judge Woodruff, who presided at the trial; and after the laches of the plaintiff, extending over a period of ■nearly a year and a half after the notice of the judgment, Judge Woodruff properly and justly refused to permit a settle»

p. 147

ment of tbe case. Tbe delay itself was a complete answer to tbe favor asked, without reference to tbe fact that, if tbe case were settled, no appeal having been taken within tbe thirty days allowed by tbe Code, such settlement would be of no utility. Tbe defendant is not responsible for the dilemma in which the plaintiff is placed, and is not by any rule required to waive his rights finally acquired. For these reasons, the order appealed from, made at special term by Judge Woodruff, must be affirmed.