BROOKE v. TRADESMEN’S NAT. BANK.(Supreme Court, General Term, First Department.Headnote
Exceptions Heard at General Term—Failure to Make Case.A cause ordered, to be heard at general term, in the first instance, on exceptions taken at the trial, will be stricken from the calendar where no case or bill of exceptions has been made or settled.
Exceptions from circuit court, New York county.
Action originally brought by Egbert H. Grandin, as receiver in supplementary proceedings of the property of William 0. Rogers, a judgment debtor, against the Tradesmen’s National Bank, to recover damages alleged to have been sustained by said Rogers by reason of the refusal of defendant to pay a certain promissory note of said Rogers, made payable at the defendant’s bank, at a time when Rogers, who was a depositor at the bank, claimed that he had funds there sufficient to pay the same. Plaintiff died pending the action, and Charles Lex Brooke, the present plaintiff, was substituted in his place. The court dismissed the complaint because of its alleged failure to state a cause of action, and directed that plaintiff’s exceptions should be heard in the first instance at the general term. Cause stricken from calendar.
Argued before VAN BRUNT, P. j., and O’BRIEN and FOLLETT, JJ.Leavitt & Leavitt, (E. R. Leavitt and Charles W. Brooke, of counsel,) for plaintiff.
Stern & Rushmore, (C. E. Rushmore, of counsel,) for defendant.
Upon an examination of the papers submitted upon this appeal, it is found that no case or bill of exceptions has been made or settled containing the proceedings upon the trial. All that the papers contain are the pleadings, a copy of the clerk’s minutes, and an order directing "the exceptions to be heard, in the first instance, at the general term. It is true that the order contains certain recitals; but they are not in the form of a case or bill of exceptions, which it is necessary should be made in order to bring up the proceedings upon the trial upon this motion for a new trial. There is no appeal from this order, but a motion for a new trial, because of exceptions taken upon the trial; and the proceedings upon the trial are not set out in a case or bill of exceptions, as required by the Code. The case should therefore be stricken from the calendar, in order that the parties may have the proper papers prepared.