Hyperlawhypertext legal database Bonneford v. De Russy 26 N.Y.S. 193

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Bonneford v. De Russy

26 N.Y.S. 193 Court N.Y. Gen. Term Decision date 1893-12-08 English

Delivered by MERWIN, J.

Contents

Majority

p. 193
(73 Hun, 377.)
BONNEFORD v. DE RUSSY et al.
(Supreme Court, General Term, Fourth Department.
December 8, 1893.)

Headnote

Appeal—Settlement of Case—Waiver by Stipulation.
Papers on appeal included what purported to be a case and exceptions, but there was nothing to show that the case and exceptions were ever settled by referee, as required by Code Civil Proc. § 997, or ordered to be filed, as required by rule 35. Held, that the defect was not aired by a stipulation by the attorneys of the parties that “certification of the above and foregoing case and exceptions is hereby waived, and it is consented that the same be filed."
Appeal from judgment on the report of referee.
Action by Francis Bonneford against Emma H. De Russy, impleaded with others. From a judgment in favor of plaintiff , for §2,708.23 and costs, defendant De Russy appeals. Remanded for settlement of case.
Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.
Talcott & Meyer, for appellant.
J. I. Foote, for respondent.

The papers in this case include what purport to be a case and exceptions. There is, however, nothing to show that the case and exceptions were ever settled by the referee, as required by section 997 of the Code, or ordered to be filed, as required by rule 35. There is a stipulation over the names of the attorneys for the respective parties stating that “certification of the above and foregoing case and exceptions is hereby waived, and it is consented that the same be filed.” This does not cure. the defect. The provision that the casé should be settled by the judge or referee who tried the cause is a wholesome one, (Reese v. Boese, 92 N. Y. 632 ,) and should be enforced, (Dwight v. Railroad Co., [Sup.] 8 N. Y. Supp. 789 ; McNish v. Bowers, 30 Hun, 214 .) Nor is there any certificate of the clerk, under section 1353 of the Code, nor any stipulation of the attorneys, under section 3301 as amended in 1882 and 1890. The case should be sent back for settlement and certification. All concur.

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