Woodhull v. Mayor — 23 N.Y.S. 553

Majority

p. 553

(69 Hun, 210.)

WOODHULL v. MAYOR, ETC., OF CITY OF NEW YORK et al.

(Supreme Court, General Term, First Department.

May 12, 1893.)

Headnote

Appeal—Settlement of Case.

Where a case on appeal has not been settled by the judge, as required by Code Civil Proe. § 997, or ordered filed by the judge, as provided by general rule of practice No. 35, the notice of appeal from the judgment does not bring it up for review.

Appeal from circuit court, New York county.

Action by Sells E. Woodhull against the mayor, aldermen, and commonalty of the city of New York and the city of Brooklyn for personal injuries received on the passenger railway across the Brooklyn bridge. Judgment for plaintiff. Defendants appeal.

Affirmed.

Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.

p. 554

William H. Clark and Abnet F. Jenks, (Theodore Connoly and Terence Farley, of counsel,) for appellants.

Wm. J. Gaynor and Paul E. De Fere, for respondent.

December 8, 1892, a verdict in favor of the plaintiff for $4,000 damages was rendered. On the next day the defendants moved on the judge’s minutes for a new trial “on all the grounds specified in section 999 of the Code of Civil Procedure.” On the same day an order was-entered granting the motion, “unless the plaintiff consents to the reduction thereof to the sum of $1,500, and, if such consent be made, that said motion for a new trial be denied.” December 10th the plaintiff filed a stipulation reducing the verdict to $1,500, and on the 12th of December, 1892, a judgment was entered for $1,500 damages and $227.07 costs; total, $1,727.07. On the 6th of January, 1893, (25 days after the entry of judgment,) a further order was entered, reciting “that, a verdict having been rendered on the second cause of action in favor of the plaintiff for the sum-of $4,000, and the said verdict having been reduced to $1,500, and defendants having moved to set aside said verdict, and for a new trial, on all the grounds specified in section 999 of the Code of Civil Procedure,” and directing “that the said motion be, and is hereby in all respects denied.” One of the grounds mentioned in section 999 is that “the verdict is for * * * insufficient damages.” Afterwards, and in the month of January, 1893, the defendants severally appealed from the judgment and from the order entered January 6, 1893. The record before us contains the judgment roll, the order of January 6th, the notices of appeal, and what purports to be a case containing exceptions. This case sets forth the questions put to the witnesses and the answers given by them, and is evidently nothing but a copy of the stenographer’s minutes of the .proceedings which took place on the trial. This is a violation of general rule No. 34. This so-called “case” has never been settled by the judge who tried it, as required by section 997 of the Code of Civil Procedure. No. 35 of the general rules of practice provides that “no case or exceptions to be annexed to the judgment shall hereafter be filed by the clerk of the court, unless the same is so ordered by the judge or referee who tried the cause.” The so-called “case” not having been ordered filed with the clerk, and annexed to the judgment roll, it forms no part of the roll, and is not brought by the notice of appeal from the judgment before this court for review. The case not having been settled nor signed by the judge who tried it, we cannot review the order of January 6, 1893, denying a motion for a new trial, even if we assume it was made “at the same term” at which the action was tried. Heretofore the court has often simply declined to hear cases presented by such records, and has allowed them to be withdrawn for correction; but this has not been sufficient to stop this irregular practice. The notices of appeal do bring before this court for review the judgment roll and the order of January 6th, but nothing else. No error appearing upon the face of either, both must be affirmed, with costs.