Hobart v. Hobart

Headnote

It seems that the provision of the rule (Rule 8) requiring an order on a non-enumerated motion to specify “ all the papers used or read on the motion," is not satisfied by a statement that the motion was made upon all the papers and proceedings in the action. (Rule 1, Ct. of Appeals.)

An appeal to this court from an order of General Term only brings up

certified copies of the notice of appeal, the order appealed from and the papers on which the court below acted.

When a return is procured of papers not before the General Term, a motion to correct the return and to require the appellant to make a case as required by the rules is proper.

This was a motion to correct a return and to require appellant to make and serve a case as required by the rules.

The action was for partition.

The appeal was by a referee appointed to sell from an order of General Term, affirming so much as was appealed from of an order of Special Term confirming the report of sale, but cutting down the fees of the referee. The appeal to the General Term was from the latter portion of the order.

The mem. of decision which states the material facts is as follows:

“ It does not appear that referee Beilis was a party to the proceeding which resulted in an order at Special Term confirming the report of sale in -this action, after cutting down his fees. But he appealed from so much of it as aggrieved him, and was entitled to the benefit of all the papers on which the order rested. Those were, as the order states, not only “ the referee’s report,” but “ all the papers and proceedings in the action.” A statement so general does not satisfy that rule of the Supreme Court which requires all the papers used or read on the motion to be specified in the order (Rule 3); but no objection seems to have been taken to the omission by either party, and in preparing his appeal papers to the General Term the referee printed only the report of sale and receipts and vouchers therein referred to. Upon those papers he invoked the action of the court, and his appeal from its decision can only bring up certified copies of the notice of appeal, the order appealed from, and the papers on which the court below acted in making the order. (Rule 1, Ct. of App.) He was also bound to prepare and serve on the respondents a copy of the papers so returned, together with a copy of the opinion of the court. It is apparent that these rules have not been obeyed. A return has been procured of papers which were not before the Gen

eral Term, and the case served is also excessive. Therefore the motion to correct the return and require the appellant to make a case and serve copies thereof, as required by the rules of this court, must be granted, with costs.”