Ward v. Couch

The case having been settled (Vandenbergh v. Mathews, 52 App. Div. 616 , 65 N. Y. Supp. 365 ), and the papers not having been printed, filed, and served within the time required by rule 41 of the General Rules of Practice, the appellant is in default. Appellant’s counsel has evidently failed to notice that, since the repeal of rule 85 and the amendment of rule 41 by striking out the words “and filing,” the time limited for filing and serving the printed record on appeal, where a case and exceptions have been settled, commences to run from the date of settlement, and not, as formerly, from the date of the filing of the case signed by the judge or referee who tried the case. The appellant not having excused his default in any way, the motion should be granted, without prejudice, however, to a motion to be relieved from such default. Motion granted, and appeal dismissed, with costs, including $10 costs of. this motion, without prejudice to an application by appellant to be relieved from his default.