Majority
p. 517Emanuel Polito et al., Constituting the Firm of Polito Brothers, Respondents, v. Guiesseppe Pitriello et al., Appellants. (Submitted October 4, 1909; decided October 12,1909.)
Headnote
Appeal — filing of return.The filing of a return to the Court of Appeals cannot be compelled until the appeal is fully perfected.
Reported below, 132 App. Div. 903 .
Motion to restore to the calendar an appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 23, 1909, affirming a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term.
Peter J. McGoldrich for motion.
K. C. McDonald and M. V. McDonald opposed.
This is a motion to restore the appeal in this proceeding to the calendar, it having been dismissed under rule one for failure to file a return as therein required.
It appears that the justification of sureties executing the
p. 518
undertaking on the appeal is still pending and undetermined in the Supreme Court.
The filing of a return cannot be compelled until the appeal is fully perfected.
The motion should be granted, without costs.
Cullen, Cli. J., Edward T. Bartlett, Haight, Yann, Willard Bartlett, Hiscock and Chase, JJ., concur.
Motion granted.