Majority
p. 941Horton v. Boyle et al. (Common Pleas of New York City and County, General Term. December 7, 1891.) Argued before Daly, C. J., and Bischoff, J.
Headnote
Appeal—Dismissal—Neolect to Prosecute.Four months after service of notice of appeal, appellant, who had failed to make a case, and had paid the judgment appealed from, gave notice of withdrawal of the appeal, without tendering costs. Held, that the appeal should be dismissed, on respondent’s motion, for lack of diligence on the part of appellant, although he asked for further time to prepare appeal papers.
On motion to dismiss plaintiff’s appeal.
Joseph M. Williams, for plaintiff. Dewitt C. Morrell, for defendants.
This case was tried April 10, 1891, and the complaint dismissed. Notice of appeal was served May 12th. After several motions,— one for further time to make case, another for stay of proceedings, and another to set aside the judgment,—'Which were denied, appellant, on September 12th, gave notice of withdrawal of appeal, under instructions from his client
p. 942
-(who had paid the judgment for costs) to proceed no further. But costs were not tendered with such notice of withdrawal, and respondent gave notice of .argument, and has now served notice of motion to dismiss the appeal The .appellant seems to have made no answer to the motion, but asks until next term to prepare his appeal papers. In view of the fact that he has never prepared a case, there does not appear to be any good faith in the application. If ;he desired to prosecute an appeal he should have proceeded with some diligence.
Motion granted, with $10 costs.