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Middleman v. Stevenson, Raldiris & Co.

113 N.Y.S. 762 Court N.Y. App. Term Decision date 1908-12-24 English

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p. 762
MIDDLEMAN v. STEVENSON, RALDIRIS & CO.
(Supreme Court, Appellate Term.
December 24, 1908.)

Headnote

Courts (§ 190[1] )—Municipal Courts of New York—Appeal—Return—Settlement.
Consent of attorneys to the settlement and filing of a case on appeal from the Municipal Court cannot be substituted for settlement and allowance by the trial justice, under Municipal Court act (Laws 1902, p. 1580, c. 580) § 317, requiring that the return shall be indorsed by the justice, unless it is made under section 319 (page 1581), providing for returns in case the justice becomes unable to make the same.
[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.*]
Appeal ■ from Municipal Court, Borough of Manhattan,, Second District.
Action by Rose L. Middleman against Stevenson, Raldiris & Co. Judgment for plaintiff, and defendant appeals.
Return remitted for settlement and indorsement.
Argued before GIEGERICH, HENDRICK, and FORD, JJ;
Augustine & Hopping, for appellant.
Poliak & Deutsch (Samuel B. Poliak, of counsel), for respondent.

The attorneys for the respective parties herein by written stipulation consented “that the annexed transcript of the

p. 763
stenographer’s minutes, as corrected, is correct, and that the case on appeal in the above-entitled action be settled by consent as filed herewith.” Upon this statement alone, without the indorsement and allowance by the trial justice as required by section 317 of the Municipal Court, act (Laws 1902, p. 1580, c. 580), the record is submitted for our determination.

The consent of the attorneys to the settlement and filing of a case on appeal from the Municipal Court cannot be substituted for the statutory requirement of a settlement and allowance by the trial justice, and before this court can consider a return it must be indorsed by such justice, as required by the provisions of the aforesaid section, unless such return is made under the provisions of section 319 (page 1581) of said Municipal Court act, which is not this case. The return must be remitted to the lower court for settlement and indorsement by the trial justice.

Return remitted to the lower court for settlement and indorsement by the trial justice.